Yogyakarta Article Human Rights Law Review

Human Rights Law Review 8:2 ß The Author [2008]. Published by Oxford University Press.
All rights reserved. For Permissions, please email: [email protected]

doi:10.1093/hrlr/ngn009
.......................................................................
Sexual Orientation, Gender

Identity and International
Human Rights Law:
Contextualising theYogyakarta
Principles
Michael O’Flaherty* and John Fisher**
Abstract
On 26 March 2007, a group of human rights experts launched the

Yogyakarta Principles on the Application of Human Rights Law in
Relation to Sexual Orientation and Gender Identity (the Yogyakarta
Principles). The Principles are intended as a coherent and comprehen-
sive identification of the obligation of States to respect, protect and
fulfil the human rights of all persons regardless of their sexual orienta-
tion or gender identity. Since their launch the Principles have attracted
considerable attention on the part of States, United Nations actors and
civil society. It is likely that they will play a significant role within
advocacy efforts and, whether directly or otherwise, in normative and
jurisprudential development. The present article constitutes the first
published critical commentary on the Principles. It seeks to situate
them within the contexts of (a) the actual situation of people of diverse
sexual orientations and gender identities, and (b) the applicable
international human rights law as it stands today. Thus situated, the
Yogyakarta drafting process and the outcome text are examined.
The final section of the article comprises a preliminary review of the
impact and dissemination of the Principles.
* Professor of Applied Human Rights and Co-director of the Human Rights Law Centre, School of
Law, University of Nottingham; Member of the Human Rights Committee and Rapporteur
for the development of the Yogyakarta Principles ([email protected]).
** Co-director of ARC International, a non-governmental organisation that advances recognition
of sexual orientation and gender identity issues at the international level (john@arc-
international.net). The authors express appreciation to Caroline Przybylla for her assistance
with the referencing of this article.
...........................................................................
Human Rights Law Review 8:2(2008), 207^248
208 HRLR 8 (2008), 207^248
1. Introduction
Worldwide, people are subject to persistent human rights violations because of
their actual or perceived sexual orientation and gender identity. These human
rights violations take many forms, from denials of the rights to life, freedom
from torture, and security of the person, to discrimination in accessing eco-
nomic, social and cultural rights such as health, housing, education and the
right to work, from non-recognition of personal and family relationships to per-
vasive interferences with personal dignity, suppression of diverse sexual identi-
ties, attempts to impose heterosexual norms, and pressure to remain silent
and invisible.
At least seven countries maintain the death penalty for consensual same-
sex practices,1 and numerous reports have documented persons killed or
sentenced to death because of their sexual orientation or gender identity,2
including a gay man sprayed with gasoline and set on fire in Belgium, the
murder of a transgender human rights defender in Argentina, a nail bomb
explosion in a gay bar in the United Kingdom, killing three people and injuring
dozens of others, the murder of a gay rights activist by multiple knife wounds
in Jamaica, prompting a crowd to gather outside his home, laughing and call-
ing out ‘let’s get them one at a time’, and the recent execution-style murder of
two lesbian human rights defenders in South Africa. Often killings based on
sexual orientation or gender identity are perpetrated ‘by agents of the State,
and their murders go unpunished. Indeed no prosecution is ever brought’.3
In a recent report,4 Amnesty International documents serious patterns of
police misconduct directed against individuals in the United States because of
1 Those states are Iran, Mauritania, Saudi Arabia, Sudan, United Arab Emirates, Yemen and
Nigeria (the death penalty applies in 12 Northern provinces). See Ottoson, ‘State-Sponsored
Homophobia. A World Survey of Laws Prohibiting Same Sex Activity between Consenting
Adults’, International Lesbian and Gay Association (ILGA), April 2007; and International
Lesbian and Gay Association, ‘World Day against Death Penalty: 7 Countries Still Put People
to Death for Same-Sex Acts’, Press Release, 10 October 2007.
2 See Amnesty International, ‘Crimes of Hate, Conspiracy of Silence. Torture and Ill-Treatment
Based on Sexual Identity’, AI Index ACT 40/016/2001, August 2001 at 21; Human Rights
Watch, ‘In a Time of Torture. The Assault on Justice in Egypt’s Crackdown on Homosexual
Conduct’, 1 March 2004, available at: http://hrw.org/reports/2004/egypt0304/ [last accessed
15 February 2008]; Human Rights Watch, ‘Hated to Death: Homophobia, Violence and
Jamaica’s HIV/AIDS Epidemic’, November 2004, available at: http://hrw.org/reports/2004/
jamaica1104/jamaica1104.pdf [last accessed 15 February 2008]; and Human Rights Watch,
‘More Than a Name. State-Sponsored Homophobia and its Consequences in South Africa’,
1 January 2003, available at: http://www.hrw.org/reports/pdfs/g/general/safriglhrc0303.pdf
[last accessed 15 February 2008]. See also International Commission of Jurists, ‘Sexual
Orientation and Gender Identity in Human Rights Law. References to Jurisprudence and
Doctrine of the United Nations Human Rights System’, November 2007 at 87^106.
3 Statement by the Special Rapporteur on extrajudicial, summary or arbitrary executions,
Human Rights Council, 19 September 2006, available at: http://www.extrajudicialexecutions.
org/reports/dialogues/hrc_second_session/texts/Alston.pdf [last accessed 15 February 2008].
4 Amnesty International, ‘Stonewalled: Police Abuse and Misconduct against Lesbian, Gay,
Bisexual and Transgender People in the US’, AI Index AMR 51/122/2005, September 2005,
The Yogyakarta Principles 209
their sexual orientation or gender identity, including profiling of such indivi-

duals as criminal, selective enforcement of laws, sexual, physical and verbal
abuse, failure to respond or inadequate responses by the police to hate crimes
and violence, as well as to situations of domestic violence that involve same-
sex partners, inappropriate searches and mistreatment in detention and a lack
of accountability for perpetrators.
Those who transgress gender norms are particularly likely to be targeted for
violence. The organisation ‘Transgender Day of Remembrance’ estimates that
one transgender person is killed every month in the US.5 In Nepal, me¤ tis
(people born as men who identify as women) have been beaten by police
with batons, gun butts and sticks, burnt with cigarettes and forced to perform
oral sex.6
Transgender people are ‘often subjected to violence . . . in order to ‘‘punish’’
them for transgressing gender barriers or for challenging predominant con-
ceptions of gender roles’,7 and transgender youth have been described
as ‘among the most vulnerable and marginalized young people in society’.8
As one Canadian report underlines:
The notion that there are two and only two genders is one of the most
basic ideas in our binary Western way of thinking. Transgender people
challenge our very understanding of the world. And we make them pay
the cost of our confusion by their suffering.9
Violations directed against lesbians because of their sex are often inseparable
from violations directed against them because of their sexual orientation.10
Community restrictions on women’s sexuality result in a range of human
rights violations, such as the multiple rape of a lesbian in Zimbabwe, arranged
by her own family in an attempt to ‘cure’ her of her homosexuality.11
available at: http://www.amnestyusa.org/outfront/stonewalled/report.pdf [last accessed

15 February 2008].
5 Transgender Day of Remembrance, ‘About the Day of Remembrance’, available at: http://
www.gender.org/remember/day/what.html [last accessed 15 February 2008].
6 Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treat-
ment or punishment, ‘Summary of Information, Including Individual Cases, Transmitted to
Governments and Replies Received’, Commission on Human Rights, 21 March 2006, E/CN.4/
2006/6/Add.1 at paras 180 and 183.
7 Report of the Special Rapporteur on the question of torture and other cruel, inhuman or
degrading treatment or punishment, UN General Assembly, 3 July 2001, A/56/156 at para. 17.
8 Report of the Special Rapporteur on the sale of children, child prostitution and child porno-
graphy, Commission on Human Rights, 5 January 2004, E/CN.4/2004/9 at para. 123.
9 Findlay, as cited in Egale Canada Human Rights Trust,‘Outlaws & In-laws: Your Guide to LGBT
Rights, Same-Sex Relationships and Canadian Law’ (2003) at 46.
10 See generally, Rothschild, ‘Written Out: How Sexuality is Used to Attack Women’s Organizing’,
International Gay and Lesbian Human Rights Commission and the Center for Women’s
Global Leadership (2005); and Saiz, ‘Bracketing Sexuality: Human Rights and Sexual
Orientation ^ A Decade of Development and Denial at the UN’, (2004) 7 Health and Human
Rights 2 at 64^6.
11 Report of the Special Rapporteur on violence against women, its causes and consequences,
Commission on Human Rights, 31 January 2002, E/CN.4/2002/83 at para. 102; Report of the
210 HRLR 8 (2008), 207^248
The Institute for Democracy in South Africa has reported that lesbians face
violence twice as frequently as heterosexual women, and are at increased risk
of being raped precisely because of their sexual orientation, often by someone
they know.12 According to the Institute, the reason most frequently cited for
rape of lesbians was that the man needed to ‘show her’ she was a woman.13
The linkages between violence based on sex, sexual orientation, gender
identity and gender expression are illustrated by a recent case in which a teen-
ager in Dublin attacked a woman he mistook for a gay man because of her
hairstyle. Approaching the woman and her male companion with the inquiry
‘are you two gay guys?’ he proceeded to strike the couple, knocking them to
the ground, before kicking the woman in the back and stomach, and jumping
on the man’s back.14
More than 80 countries still maintain laws that make same-sex consensual
relations between adults a criminal offence.15 Recently, such laws were used
in Morocco to convict six men, after allegations that a private party they had
attended was a ‘gay marriage’,16 and in Cameroon 11 men were arrested in a
bar believed to have a gay clientele in May 2005, and sent to prison where
they spent more than a year, and a further six men were arrested on 19 July
2007, after a young man who had been arrested on theft charges was coerced
by police into naming associates who were presumed to be homosexual.17 In
other countries, laws against ‘public scandals’, ‘immorality’ or ‘indecent behav-
iour’ are used to penalise people for looking, dressing or behaving differently
from enforced social norms.18 Even where criminal sanctions against homo-
sexuality or ‘immorality’ are not actively enforced, such laws can be used to
arbitrarily harass or detain persons of diverse sexual orientations and gender
Special Rapporteur on violence against women, its causes and consequences, Commission on
Human Rights, 12 February 1997, E/CN.4/1997/47 at para. 8. See also, Report of the Special
Rapporteur on violence against women, its causes and consequences, ‘Intersections between
culture and violence against women’, Human Rights Council, 17 January 2007, A/HRC/4/34.
12 Graham and Kiguwa,‘Experiences of Black LGBTI Youth in Peri-Urban Communities in South
Africa’, Community Media for Development (CMFD) and the Institute for Democracy in
South Africa (IDASA), 2004, at 15.
13 Ibid. at 5.
14 Tuite, ‘Teen Attacked Couple he had Mistaken for Two Gay Men’, Irish Independent, 10 January
2008.
15 Ottoson, supra n. 1.
16 Amnesty International, ‘Morocco/Western Sahara: Drop Charges of Homosexuality against
Six Men and Ensure their Safety’, Press Release, 16 January 2008.
17 Opinions adopted by the Working Group on Arbitrary Detention, ‘Opinion No. 22/2006
(Cameroon)’, Human Rights Council, 2 February 2007, A/HRC/4/40/Add.1 at 91. Johnson,
‘A rbitrary Arrests and Detention of Men in Cameroon on Charges Related to Sexual
Orientation and Gender Identity’, International Gay and Lesbian Human Rights Commission
(IGLHRC), 11 September 2007.
18 See, for example, Human Rights Watch, ‘Kuwait: Repressive Dress-Code Law Encourages
Police Abuse. Arrests Target Transgender People’, Press Release, 17 January 2008, available
at: http://hrw.org/english/docs/2008/01/17/kuwait17800.htm [last accessed 15 February
2008].
identities, to impede the activities of safer sex advocates or counsellors, or as a

pretext for discrimination in employment or accommodation.19
Those seeking to peaceably affirm diverse sexual orientations or gender
identities have also experienced violence and discrimination. Participants in
an Equality March in Poland, for example, faced harassment and intimidation
by police as well as by extremist nationalists who shouted comments such
as ‘Let’s get the fags’, and ‘We’ll do to you what Hitler did with Jews’,20 and
attempted suppression of Pride events has been documented in at least 10
instances in Eastern Europe.21 State interference with such exercise of the free-
doms of expression, assembly and association have included banning of Pride
marches, conferences and events, condemnatory anti-homosexual comments
by political representatives, police failure to protect participants from violence
or complicity in such violence, and discriminatory or arbitrary arrests of
peaceful participants.22
Discrimination in accessing economic, social and cultural rights has been
widely documented. People have been denied employment, employment-related
benefits or faced dismissal because of their sexual orientation or gender iden-
tity.23 In the context of the right to adequate housing, lesbian and transgender
women have been found to be at increased risk of homelessness, discrimina-
tion based on sexual orientation or gender identity in renting accommodations
has been experienced both by individuals and same-sex couples, and persons
have been forced from their homes and communities when their sexual orien-
tation or gender identity has become known.24 Transgender persons may face
particular obstacles in seeking to access gender-appropriate services within
19 Voices against 377, ‘Rights for All: Ending Discrimination against Queer Desire under Section
377’, 2004, available at: http://files.creaworld.org/files/Voices_Report_English.pdf [last accessed
15 February 2008].
20 Report by the Special Rapporteur on contemporary forms of racism, racial discrimination,
xenophobia and related intolerance, Commission on Human Rights, 27 March 2006, E/CN.4/
2006/16/Add.1 at para. 72.
21 ILGA-Europe, ‘Prides against Prejudice. A Toolkit for Pride Organising in a Hostile
Environment’, September 2006, at 9, available at: http://www.ilga-europe.org/europe/
publications/non_periodical/prides_against_prejudice_a_toolkit_for_pride_organising_in_a_hostile_
environment_september_2006 [last accessed 15 February 2008].
22 Report by the Special Rapporteur on contemporary forms of racism, racial discrimination,
xenophobia and related intolerance, supra n. 20 at paras 72^3.
23 See, for example, Abramowicz, ‘Situation of Bisexual and Homosexual Persons in Poland’,
Campaign against Homophobia and Lambda Warsaw Association, Warsaw, 2007, at 20, avail-
able at: www.kampania.org.pl/cms/data/upimages/report_homophobia_Poland_2007_EN.pdf
[last accessed 15 February 2008]; Human Rights Watch, supra n. 2 at 209^11; Egan v Canada
[1995] 2 SCR 513 at 600^1; International Gay and Lesbian Human Rights Commission
(IGLHRC), ‘Abuses of Freedom of Assembly, Association and Expression against Sexual
Minorities in Indonesia’, 2007 (addressing denials of the right to work to transgender per-
sons); Report of the Secretary-General on integrating the human rights of women throughout
the United Nations system, 10 January 2005, E/CN.4/2005/68 at para. 14, citing the Report of
the Special Rapporteur on the sale of children, child prostitution and child pornography,
supra n. 8.
24 Report by the Special Rapporteur on adequate housing as a component of the right to an ade-
quate standard of living, and on the right to non-discrimination, Commission on Human
212 HRLR 8 (2008), 207^248
homeless shelters.25 Materials referencing issues of sexual orientation and

gender identity have been banned from school curricula, student groups
addressing sexual orientation and gender identity issues have been prohibited,
students have faced high levels of bullying and harassment because of their
actual or perceived sexual orientation or gender identity, and in some cases
young persons who express same-sex affection have been expelled.26 In some
countries, laws have prohibited the ‘promotion of homosexuality’ in schools.27
Multiple health-related human rights violations based on sexual orientation
and gender identity have also been documented. Lesbian, gay, bisexual and
transgender persons have been forcibly confined in medical institutions, and
subject to ‘aversion therapy’, including electroshock treatment.28 Criminal
sanctions against homosexuality have had the effect of suppressing HIV/AIDS
education and prevention programmes designed for men who have sex
with men or persons of diverse sexual orientations or gender identities.29
Transgender people report having been referred to by health professionals as
Rights, 27 February 2006, E/CN.4/2006/118 at para. 30; and Human Rights Watch, supra n. 2
at 52^5.
25 Amnesty International, supra n. 4 at 113.
26 Forum for the Empowerment of Women, ‘Dropping Out or Forced Out?: Young Black Lesbian
Women and the Right to Education in South Africa’, ongoing documentation, 2007, submitted
to the Office of the High Commissioner for Human Rights as part of an NGO submission in
the Universal Periodic Review of South Africa; International Gay and Lesbian Human Rights
Commission (IGLHRC), ‘Cameroon: Concerns of Arbitrary Arrest and Detentions, School
Expulsions and Harassment of Gays and Lesbians in the Media’, December 2007; Human
Rights Watch, ‘More Than a Name’, supra n. 2 at 107; Abramowicz, supra n. 23 at 51;
Committee on the Rights of the Child, Report on the 28th Session, CRC/C/111, 2001, at para.
727; Report of the Special Rapporteur on the right to education, Commission on Human
Rights, 8 February 2006, E/CN.4/2006/45 at para. 113; and Report of the Special Rapporteur
on the right to education, Commission on Human Rights, 11 January 2001, E/CN.4/2001/52
at para. 75.
27 See for example Connolly, ‘Poland to Ban Schools from Discussing Homosexuality’, The
Guardian, 20 March 2007. See also former section 28 of the UK Local Government Act 1988
which prohibited the promotion of homosexuality in schools. It was repealed on 21 June
2000 in Scotland, and on 18 November 2003 in the rest of the UK.
28 See Amnesty International, supra n. 2 at 21. Human Rights Watch,‘Hated to Death’, supra n. 2;
Human Rights Watch, ‘More Than a Name’, supra n. 2; Report of the Special Rapporteur on
the question of torture and other cruel, inhuman or degrading treatment or punishment,
supra n. 7 at paras 17^25. Report of the Special Rapporteur on the question of torture and
other cruel, inhuman or degrading treatment or punishment, Commission on Human
Rights, 23 December 2003, E/CN.4/2004/56 at para. 64.
29 Toonen v Australia (488/1992), CCPR/C/50/D/488/1992 (1994); 1^3 IHRR 97 (1994) at para. 8.5;
Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest
attainable standard of physical and mental health, Commission on Human Rights, 16
February 2004, E/CN.4/2004/49 at para. 38; Narrain, ‘The Articulation of Rights around
Sexuality and Health: Subaltern Queer Cultures in India in the Era of Hindutva’, (2004) 7
Health and Human Rights 2 at 152; Human Rights Watch, ‘Uganda: State Homophobia
Threatens Health and Human Rights’, Press Release, 23 August 2007, available at: http://
hrw.org/english/docs/2007/08/22/uganda16729.htm [last accessed 15 February 2008]; and
Human Rights Watch, ‘More Than a Name’, supra n. 2 at 109.
‘thing’, ‘it’, or ‘not a real man/woman’.30 Intersex people have been subjected to
involuntary surgeries in an attempt to ‘correct’ their genitals.31
In the health-sector and elsewhere, same-sex relationships are frequently
unrecognised and devalued, with same-sex partners denied a broad range of
entitlements available to heterosexuals, such as the right to make medical deci-
sions for an incapacitated partner, to visit a partner or partner’s child in hospi-
tal, to inherit property or be involved in funeral arrangements when a
partner dies, to have equal pension benefits, file joint tax returns, obtain fair
property settlement if a relationship ends, or be recognised as a partner for
immigration purposes.32
Those who seek to advocate for an end to such violations or affirm the
human rights of persons of diverse sexual orientations or gender identities
are particularly at risk:33
Defenders [of the rights of lesbian, gay, bisexual, transgender and inter-
sex persons (LGBTI)] have been threatened, had their houses and offices
raided, they have been attacked, tortured, sexually abused, tormented by
regular death threats and even killed. . . . In numerous cases from all
regions, police or government officials are the alleged perpetrators of vio-
lence and threats against defenders of LGBTI rights. In several of these
cases, the authorities have prohibited demonstrations, conferences and
meetings, denied registration of organisations working for LGBTI rights
and police officers have, allegedly, beaten up or even sexually abused
these defenders of LGBTI rights.
Although less tangible, perhaps even more systemic and far-reaching in conse-
quence is the net result of such endemic human rights violations: the constant
fear in which many persons of diverse sexual orientations and gender identi-
ties have to live.34 As one man arrested and subsequently tortured following a
police raid of a gay discotheque in Egypt noted: ‘I used to think being gay
30 See, for example, Coalition for Lesbian and Gay Rights in Ontario, ‘Systems Failure: A Report
on the Experiences of Sexual Minorities in Ontario’s Health-Care and Social-Services
Systems’ (1997) at 48; and Canadian HIV/AIDS Legal Network/Canadian AIDS Society, ‘Gay
and Lesbian Legal Issues and HIV/AIDS: Final Report’ (1998) at 86.
31 See Cabral, Statement to UN Commission on Human Rights, 61st session, Item 13: Rights of
the Child, 14 March to 22 April 2005, available at: http://www.ilga.org/news_results.
asp?LanguageID¼1&FileCategory¼61&FileID¼567 [last accessed 15 February 2008]; and
Fact sheets of the Intersex Society of North America, available at http://www.isna.org/faq/
[last accessed 15 February 2008].
32 See, for example, Human Rights and Equal Opportunities Commission, ‘Same-Sex: Same
Entitlements, National Inquiry into Discrimination against People in Same-Sex
Relationships’, Australia, 2007, available at: www.humanrights.gov.au/human_rights/same
sex/index.html [last accessed 15 February 2008].
33 Report of the Special Representative of the Secretary-General on human rights defenders,
Human Rights Council, 24 January 2007, A/HRC/4/37 at paras 93^7.
34 See, for example, Report of the Special Rapporteur on the right of everyone to the enjoyment
of the highest attainable standard of physical and mental health, supra n. 29 at para. 38;
and Narrain, supra n. 29 at 148^50.
214 HRLR 8 (2008), 207^248
was just part of my life and now I know it means dark cells and beatings.’35
Faced with obstacles to familial and social acceptance that may seem over-
whelming, many lesbians, gays, bisexuals, transgender and intersex people
remain invisible and isolated. The high rates of documented suicide by such
people are consequently unsurprising.36
2. Review of Law and Jurisprudence

There is a growing jurisprudence and other law-related practice that identifies
a significant application of human rights law with regard to people of diverse
sexual orientations and gender identities. This phenomenon can be observed
at the international level, principally in the form of practice related to the
United Nations-sponsored human rights treaties, as well as under the
European Convention on Human Rights. The development of this sexual orien-
tation and gender identity-related human rights legal doctrine can be cate-
gorised as follows: (a) non-discrimination, (b) protection of privacy rights and,
(c) the ensuring of other general human rights protection to all, regardless of
sexual orientation of gender identity. In addition, it is useful to examine (d)
some general trends in human rights law that have important implications
for the enjoyment of human rights by people of diverse sexual orientations
and gender identities.
A. Non Discrimination
The practice of the bodies that monitor implementation of the United Nations-
sponsored human rights treaties relates to sexual orientation-related discrimi-
nation rather than to discrimination on the basis of gender identity.
The Committee on Economic, Social and Cultural Rights (CESCR) has dealt
with the matter in its General Comments, the interpretative texts it issues to
explicate the full meaning of the provisions of the Covenant on Economic,
Social and Cultural Rights. In General Comments Nos 18 of 2005 (on the right
35 As cited in Human Rights Watch, ‘In a Time of Torture’, supra n. 2.

36 Human Rights Watch, ‘More Than a Name’, supra n. 2 at 172^5; Kroll and Warneke, The
Dynamics of Sexual Orientation and Adolescent Suicide: A Comprehensive Review and
Developmental Perspective (Calgary: University of Calgary, 1995); Bagley and Tremblay,
‘Suicidal Behaviours in Homosexual and Bisexual Males’, in Bagley and Ramsay (eds),
Suicidal Behaviours in Adolescent and Adults: Taxonomy, Understanding and Prevention
(Brookfield, Vermont: Avebury, 1997); Quebec Human Rights Commission, ‘De l’ille¤galite¤ a'
l’e¤galite¤: Rapport de la consultation publique sur la violence et la discrimination envers les
gais et lesbiennes’, May 1994 at 125; and Alternative Law Forum, ‘Table of Lesbian Suicides’,
submitted to the Office of the High Commissioner for Human Rights as Annexure D of
Universal Periodic Review submissions on India, December 2007.
to work),37 15 of 2002 (on the right to water)38 and 14 of 2000 (on the right
to the highest attainable standard of health),39 it has indicated that the
Covenant proscribes any discrimination on the basis of, inter-alia, sex and
sexual orientation ‘that has the intention or effect of nullifying or impairing
the equal enjoyment or exercise of [the right at issue]’. The CESCR has consis-
tently based this prohibition on the terms of the Covenant’s anti-discrimination
provision, Article 2.2, which lists invidious categories of discrimination as
including ‘sex’ and ‘other status’. Presumably, since the CESCR distinguishes
‘sex’ and ‘sexual orientation’ in its General Comments, it locates sexual orienta-
tion within the rubric of ‘other status’. The CESCR, in the General Comments,
also invokes the article addressing equal rights of men and women, Article 3,
as a basis for its prohibition of sexual orientation-related discrimination. This
linkage of the categories of sex and sexual orientation-related discrimination
is discussed subsequently in the context of the practice of the Human Rights
Committee (HRC).
The Committee on the Rights of the Child (CRC) has also dealt with the
issue in a General Comment. In its General Comment No. 4 of 2003,40 it stated
that, ‘State parties have the obligation to ensure that all human beings below
18 enjoy all the rights set forth in the Convention [on the Rights of the Child]
without discrimination (Article 2), including with regard to ‘‘race, colour, sex,
language, religion, political or other opinion, national, ethnic or social origin,
property, disability, birth or other status’’. These grounds also cover [inter alia]
sexual orientation’. The CRC thus appears to adopt the same approach as the
CESCR in locating sexual orientation within the category of ‘other status’.
Both the CESCR and the CRC very occasionally raise issues of sexual orien-
tation-related discrimination in the Concluding Observations they adopt on
the periodic reports submitted to them by States parties on their record of
implementation of the treaties (CESCR: regarding eight of the 70 States consid-
ered between 2000 and 2006, CRC: regarding five of the 186 States considered
in the same period). These Concluding Observations have a non-binding and
flexible nature. As such, they are not always a useful indicator of what a
Committee may consider to be a matter of obligation under the Covenant.
Nevertheless, where the Committee expresses concern or makes a specific
recommendation for correction of a practice, we can discern that serious
37 Committee on Economic, Social and Cultural Rights, General Comment No. 18: The right to
work, E/C.12/GC/18, 24 November 2005.
water, E/C.12/2002/11, 26 November 2002.
the highest attainable standard of health, E/C.12/2000/4, 11 August 2000.
40 Committee on the Rights of the Child, General Comment No. 4: Adolescent health and devel-
opment in the context of the Convention on the Rights of the Child, 1 July 2003, CRC/GC/
2003/4.
216 HRLR 8 (2008), 207^248
issues under the treaty are at issue.41 It is in this context that we may observe
the CESCR’s regret, in 2005, that Hong Kong’s anti-discrimination legislation
failed to cover sexual orientation-related discrimination42 and its concern, in
2000, that Kyrgyzstan classified lesbianism as a sexual offence in its penal
code.43
The Committee on the Elimination of Discrimination against Women
(CEDAW), notwithstanding that it has not addressed the matter in a General
Comment or otherwise specified the applicable provisions of the Convention
on the Elimination of All Forms of Discrimination Against Women, on a
number of occasions has criticised States for discrimination on the basis of
sexual orientation. For example, it also addressed the situation in Kyrgyzstan
and recommended that,‘lesbianism be reconceptualised as a sexual orientation
and that penalties for its practice be abolished’.44 The Committee on the
Elimination of Racial Discrimination (CERD) appears never to have engaged
with issues of discrimination against persons who belong to both racial and
sexual minority groups. This gap is startling when one considers the authorita-
tive evidence of such persons facing forms of ‘double discrimination’, as
reported, for instance, by the UN Human Rights Council’s Special Rapporteur
on contemporary forms of racism, racial discrimination, xenophobia and
related intolerance.45
Issues of sexual orientation have received the most extensive attention in
the work of the monitoring body under the International Covenant on Civil
and Political Rights, the HRC. In the individual communication, Toonen v
Australia, in 1994, it considered that, ‘the reference to ‘‘sex’’ in articles 2, para-
graph 1, and 26 is to be taken as including sexual orientation’.46 The HRC
thus decided that sexual orientation-related discrimination is a suspect cate-
gory in terms of the enjoyment of Covenant rights (Article 2) and, more gener-
ally, for equality before and equal protection of the law (Article 26). The HRC
has persistently observed, however, that discrimination on the basis of sexual
orientation, as is the case for all the other discrimination categories listed in
Articles 2 and 26, is not inherently invidious, since ‘not every distinction
41 O’Flaherty, ‘The Concluding Observations of United Nations Human Rights Treaty Bodies’,
(2006) 6 Human Rights Law Review 27.
42 Concluding Observations of the Committee on Economic, Social and Cultural Rights regard-
ing the People’s Republic of China (including Hong Kong and Macau), 13 May 2005, E/C.12/1/
Add.107 at para. 78.
43 Concluding Observations of the Committee on Economic, Social and Cultural Rights regard-
ing Kyrgyzstan, 1 September 2000, E/C.12/1/Add.49 at para. 17.
44 Concluding Observations of the Committee on the Elimination of Discrimination Against
Women regarding Kyrgyzstan, 5 February 1999, A/54/38 at para. 128.
45 Report of the Special Rapporteur on contemporary forms of racism, racial discrimination,
xenophobia and related intolerance, Commission on Human Rights, 28 February 2006,
E/CN.4/2006/16/Add.3 at para. 40.
46 Toonen v Australia, supra n. 29 at para. 8.7.
amounts to prohibited discrimination under the Covenant, as long as it is

based on reasonable and objective criteria’.47
The HRC, in individual communications subsequent to Toonen, while
re-affirming the scope of the Article 2.1 and 26 provisions to embrace sexual-
orientation-related discrimination, has avoided specifying that this is by
means of a reading of the term ‘sex’, albeit an individual concurring opinion
of two HRC members in the case of Joslin v New Zealand, in 2002, categorically
states that, ‘it is the established view of the Committee that the prohibition
against discrimination on grounds of ‘‘sex’’ in article 26 comprises also discri-
mination based on sexual orientation’.48 The apparent reliance on the ‘sex’cate-
gory has been criticised by the European Court of Justice,49 on the basis that
matters of sexual orientation are substantively different from binary men/
women issues which the category of ‘sex’ is often perceived to address.
However, in support of the HRC’s approach it may be recalled50 that much dis-
crimination based on sexual orientation or gender identity is directed against
those who violate social or cultural conceptions of gender. Also, taking
account of how sexual discrimination has an elevated status in the Covenant,
being addressed also in Article 3, the reliance on the ‘sex’ category appears to
elevate the suspect nature of sexual orientation-related discrimination to a
higher level than that of the other listed categories. Perhaps it is with consid-
erations such as these in mind that Jack Donnelly described the HRC’s
approach as ‘radical and provocative’.51 The approach adopted by the HRC has
the additional merit of avoiding an invocation of the category of ‘other status’
in the absence of clearly established criteria for when a non-specified form of
discrimination can be so designated.
A small number of cases have illustrated the HRC’s application of its non-
discrimination doctrine. In Young v Australia52 and X v Colombia53 the HRC
impugned a distinction made in law between same-sex partners who were
excluded from pension benefits, and unmarried heterosexual partners who
were granted such benefits. In Joslin the denial of the right to marry to same-
sex couples was considered not to constitute a violation of Article 26.
However, an individual concurring opinion of two members observed that the
authors had not sought to identify any difference in treatment arising from
their inability to marry and, ‘the Committee’s jurisprudence supports the
47 Young v Australia (941/2000), CCPR/C/78/D/941/2000 (2003) at para. 10.4.

48 Joslin v New Zealand (902/1999), CCPR/C/75/D/902/1999 (2003); 10 IHRR 40 (2003).
49 Grant v South West Trains Ltd C-249/96 [1998] ECR I-621; (1998) 1 CMLR 993.
50 See discussion in the above Situational Analysis section of this article on the linkages between
violations based on sex, sexual orientation, gender identity and gender expression.
51 Donnelly, ‘Non-Discrimination and Sexual Orientation: Making a Place for Sexual Minorities
in the Global Human Rights Regime’ in Baehr et al. (eds), Innovation and Inspiration: Fifty
Years of the Universal Declaration of Human Rights (Amsterdam: Royal Netherlands Academy
of Arts and Sciences, 1999).
52 Young v Australia, supra n. 47.
53 X v Colombia (1361/2005), CCPR/C/89/D/1361/2005 (2007).
218 HRLR 8 (2008), 207^248
position that such differentiation may very well, depending on the circum-
stances of a concrete case, amount to prohibited discrimination’.54
The breadth of the application of the HRC approach is best seen in its prac-
tice under the report review procedure. HRC frequently raises the issue of dis-
crimination on the basis of sexual orientation: during the period 2000^06,
it did so regarding 13 of the 84 countries under review. It criticised the crimi-
nalisation of homosexual sexual relations (multiple countries),55 a failure to
prohibit employment-related discrimination,56 failure to include the category
of sexual orientation in broad anti-discrimination legal regimes (multiple
countries),57 a lack of education programmes to combat discriminatory atti-
tudes58 and unequal ages of consent for sexual activity.59
At the regional level, the European Court of Human Rights (ECtHR) has
been invited to consider issues of discrimination with regard to both sexual
orientation and gender identity. The ECtHR, while reiterating that the non-
discrimination provision of the European Convention on Human Rights
(ECHR), Article 14, unlike Article 26 of the International Covenant on Civil
and Political Rights, does not erect an autonomous anti-discrimination provi-
sion, but rather one that can only be applied in conjunction with a substantive
provision of the ECHR (albeit it embraces those additional rights, falling
within the general scope of any ECHR article, for which a State has voluntarily
decided to provide),60 has consistently stated that differences based on sex
and sexual orientation must ‘have particularly serious reasons by way of justi-
fication’.61 And the ECtHR, and the former European Human Rights
Commission, have not been concerned to identify whether the identification
54 Joslin v New Zealand, supra n. 48.

55 See, for example, Concluding Observations of the Human Rights Committee regarding Egypt,
28 November 2002, CCPR/CO/76/EGY at para. 19; and Concluding Observations of the
Human Rights Committee regarding Kenya, CCPR/CO/83/KEN, 29 April 2005 at para. 27.
56 Concluding Observations of the Human Rights Committee regarding the United States of
America, 18 December 2006, CCPR/C/USA/CO/3/Rev.1 at para. 25.
57 See, for example, Concluding Observations of the Human Rights Committee regarding
Trinidad and Tobago, 3 November 2000, CCPR/CO/70/TTO at para. 11; Concluding
Observations of the Human Rights Committee regarding El Salvador, 22 July 2003, CCPR/
CO/78/SLV at para. 16; Concluding Observations of the Human Rights Committee regarding
the Philippines, 1 December 2003, CCPR/CO/79/PHL at para. 18; Concluding Observations of
the Human Rights Committee regarding Namibia, 30 July 2004, CCPR/CO/81/NAM at para.
22; and Concluding Observations of the Human Rights Committee regarding Poland, 2
December 2004, CCPR/CO/82/POL at para. 18.
58 Concluding Observations of the Human Rights Committee regarding the Philippines, ibid. at
para. 18.
59 Concluding Observations of the Human Rights Committee regarding Austria, 19 November
1998, CCPR/C/79/Add.103 at para. 13.
60 See Case relating to certain aspects of the laws on the use of languages in education in Belgium
(Belgian Linguistics case) (No. 2) A 6 (1968); (1979^80) 1 EHRR 252 at para. 9; Abdulaziz,
Cabales and Balkandali v United Kingdom A 94 (1985); (1985) 7 EHRR 471 at para. 78; and
Stec and Others v United Kingdom (2005) 41 EHRR SE 18. Compare Protocol No. 12 to the
ECHR, ETS No. 117, which entered into force on 1 April 2005 and creates a free-standing
right to non-discrimination.
61 Karner v Austria 2003-IX 199; (2003) 38 EHRR 24.
of such forms of suspect discrimination derives from the categories of ‘sex’,

‘other status’ or otherwise.62
In Salgueiro da Silva Mouta v Portugal the ECtHR held that a judge’s denial of
child custody to a homosexual father on the grounds of his sexual orien-
tation created a discriminatory enjoyment of privacy.63 In Karner v Austria the
ECtHR was of the view that the failure of Austria to permit a homosexual
man to continue occupying his deceased partner’s flat was discriminatory,
since this right, enjoyed by other family members under Austrian law, did not
apply to same-sex partners. Although the government claimed that excluding
homosexuals aimed to protect ‘the family in the traditional sense’, the ECtHR
held Austria had not demonstrated how the exclusion was necessary to that
aim.64 In L. and V. v Austria65 and S.L. v Austria66 the ECtHR considered that
Austria’s differing age of consent for heterosexual and homosexual relations
was discriminatory; it ‘embodied a predisposed bias on the part of a heterosex-
ual majority against a homosexual minority’, which could not ‘amount to suffi-
cient justification for the differential treatment any more than similar
negative attitudes towards those of a different race, origin or colour’.67
One instance in which a discrimination-based claim failed was that in Frette¤
v France. In this case a homosexual man argued that a refusal to allow him to
adopt a child for reasons of his sexual orientation constituted a violation of
the ECHR.68 In finding against him, the ECtHR referred to the fast evolving
and very diverse practice across Europe as well as the conflicting views of
experts as to what would be in the best interests of the child. The judgment is
problematic. The reasoning is inconsistent and posits false dilemmas such
as a supposed tension between the rights of the man and the child. There is
no such tension. The tension is between the rights of homosexual and hetero-
sexual prospective adoptive parents, with the rights of the child, especially
its best interests, always being paramount. Issues such as these were handled
in a more consistent and comprehensible manner in the very recent decision
in E.B. v France. The ECtHR, while assiduously maintaining the paramount
principle of the best interests of the child, held that ‘in rejecting the applicant’s
application for authorisation to adopt, the domestic authorities made a distinc-
tion based on considerations regarding her sexual orientation, a distinction
which is not acceptable under the Convention’.69
It is unclear how far a non-discrimination approach can go in terms of the
regulation of practices of non-state actors, not least since the existing
62 Sutherland v United Kingdom Application No. 25186/94, Report of 1 July 1997 at para. 50.
63 Salgueiro da Silva Mouta v Portugal 1999-IX 309; (1999) 31 EHRR 1055.
64 Karner v Austria, supra n. 61 at paras 39^41.
65 L. and V. v Austria 2003-I 29; (2003) 36 EHRR 55.
66 S.L. v Austria 2003-I 71; (2003) 37 EHRR 39.
67 L. and V. v Austria, supra n. 65; and S.L. v Austria, ibid. at para. 44.
68 Frette¤ v France 2002-I 345; (2004) 38 EHRR 21.
69 E.B. v France Application No. 43546/02, Judgment of 22 January 2008 at para. 96.
220 HRLR 8 (2008), 207^248
jurisprudence and practice only addresses instances of discrimination that fall

clearly within well established jurisprudential limits. Taking account of the
extensive literature on the subject of the reach of anti-discrimination law into
the private sphere, the applicable principles are well-articulated by Jack
Donnelly: ‘[T]he internationally recognized human right to non-discrimination
prohibits invidious public (or publicly supported or tolerated) discrimination
that deprives target groups of the legitimate enjoyment of other rights. . . . Only
when. . . social contacts systematically influence access to economic or political
opportunities do they become a matter of legitimate state regulation.’70
B. Protection of Privacy Rights

The first successful international human rights cases on issues of sexual orien-
tation were taken under the ECHR and concerned the privacy of same-sex
sexual relations. In Dudgeon v United Kingdom71 and Norris v Ireland,72 the
criminalisation of such practices was deemed a violation of the privacy protec-
tion in Article 8 of the ECHR. In Modinos v Cyprus the ECtHR again held that
such a law violated the right to privacy, and maintained that even a ‘consistent
policy’ of not bringing prosecutions under the law was no substitute for full
repeal.73 Privacy arguments were also successfully invoked in cases concern-
ing a ban on recruitment to the military of homosexuals: Smith and Grady v
United Kingdom74 and Lustig-Prean and Beckett v United Kingdom.75 The ECtHR
has also recognised privacy protection under the ECHR for transsexual per-
sons. In Goodwin v United Kingdom76 and I. v United Kingdom77 it considered
the cases of two transsexual women who claimed that the United Kingdom’s
refusal to change their legal identities and papers to match their post-operative
genders constituted discrimination. Reversing a number of its previous deci-
sions, the ECtHR held that their right to respect for their private lives, and
also their right to marry, had been violated (Articles 8 and 12 of the ECHR).
In Van Kuck v Germany78 the ECtHR considered the case of a transsexual
woman whose health-insurance company had denied her reimbursement for
costs associated with sex-reassignment surgery and who had unsuccessfully
sought redress in the domestic courts. It found violations of the right to a fair
hearing (Article 6(1) of the ECHR) and of the right to private life, holding that
the German civil courts had failed to respect ‘the applicant’s freedom to define
70 Donnelly, supra n. 51.

71 Dudgeon v UK A 45 (1981); (1982) 4 EHRR 149.
72 Norris v Ireland A 142 (1988); (1988) 13 EHRR 186.
73 Modinos v Cyprus A 259 (1993); (1993) 16 EHRR 485.
74 Smith and Grady v United Kingdom 1999-VI 45; (1999) 29 EHRR 493.
75 Lustig-Prean and Beckett v United Kingdom (1999) 29 EHRR 548.
76 Goodwin v United Kingdom (2002) 35 EHRR 18.
77 I. v United Kingdom (2003) 36 EHRR 53.
78 Van Ku« ck v Germany 2003-VII 1; (2003) 37 EHRR 51.
herself as a female person, one of the most basic essentials of self-determina-

tion’. In a powerful statement of the entitlement to an autonomous gender
identity the ECtHR spoke of ‘the very essence of the ECHR being respect for
human dignity and human freedom, protection is given to the right of trans-
sexuals to personal development and to physical and moral security’.79 In L. v
Lithuania, the ECtHR considered that the State was required to legislate for
the provision of full gender-reassignment surgery whereby a person in the
‘limbo’ of partial reassignment could complete the process and be registered
with the new gender identity.80
The HRC, in Toonen, adopted the Dudgeon/Norris approach in finding a viola-
tion by Australia of Article 17 of the Covenant. It considered that a criminal
prohibition on same-sex sexual activity, even if unenforced, constituted an
unreasonable interference with Mr Toonen’s privacy.81 The HRC has not had
the occasion since, in its consideration of individual cases, to address other
applications of the right to privacy in the context of sexual orientation or
gender identity. One possible opportunity, in Joslin, was missed since Ms Joslin
was unsuccessful in arguing the primordial claim that Article 23 of the
Covenant on marriage extended protection to same-sex relationships on the
same basis as heterosexual relationships.82 Nor has the HRC taken the oppor-
tunity to itself explore the range of applications of a privacy approach in the
context of its review of periodic reports. Here it has addressed privacy rights
exclusively in the context of the criminalisation of same-sex sexual activity
(as is the case, also, in CESCR, CEDAW and CRC). Taking account of the rela-
tively vigorous and wide-ranging engagement with privacy issues in the
European context, this dearth of practice is notable. It may reflect unease
with the issues on the part of the treaty bodies or a failure of civil society
groups to bring situations of concern to their attention.
C. The Ensuring of Other General Human Rights Protection to All,

Regardless of Sexual Orientation of Gender Identity
In 2006, during the HRC’s consideration of a periodic report, a representative of
the State party, while replying to a question of a committee member on police
violence against transsexuals,83 observed that there was no mention of such
people in the Covenant. The inference seemed to be that these people had
a lesser entitlement to protection. Any such view is, of course, untenable. The
HRC and the other treaty bodies, in the review of periodic reports, on a
number of occasions, have insisted on the entitlement of people of diverse
79 Ibid. at para. 69.

80 L. v Lithuania Application No. 27527/03, Judgment of 11 September 2007.
81 Toonen v Australia, supra n. 29 at para. 8.2.
82 Joslin v New Zealand, supra n. 48 at paras 8.1^8.3.
83 The question had been put by the first author of the present article.
222 HRLR 8 (2008), 207^248
sexual orientations and gender identities to benefit from the protection of

human rights of general application. The HRC has addressed various aspects:
‘violent crime perpetrated against persons of minority sexual orientation,
including by law enforcement officials [and] the failure to address such crime
in the legislation on hate crime’;84 ‘[t]he State party should provide appropriate
training to law enforcement and judicial officials in order to sensitive them to
the rights of sexual minorities’;85 ‘[t]he Committee expresses concern at the
incidents of people being attacked, or even killed, on account of their sexual
orientation (art.9), at the small number of investigations mounted into such
illegal acts’.86 The CRC has expressed concern that homosexual and transsex-
ual young people ‘do not have access to the appropriate information, support
and necessary protection to enable them to live their sexual orientation’.87
The practice of the Committee Against Torture (CAT) is also notable. On a
number of occasions it has expressed concern about the torture of homosex-
uals (for instance, Argentina88 and Egypt 89), and, in 2002, regarding, ‘com-
plaints of threats and attacks against sexual minorities and transgender
activists’ in Venezuela.90
The proceedings of the Special Procedures of the former UN Human Rights
Commission and the current Human Rights Council constitute a valuable
repository of examples of the application for people of diverse sexual orienta-
tions and gender identities, of general human rights protections, as well as
of the principle of non-discrimination. The Working Group on Arbitrary
Detention has frequently invoked Toonen as a basis for its finding of arbitrary
detention of homosexuals. The Special Representative of the Secretary-
General on the situation of human rights defenders has been assiduous in con-
demning the intimidation of and attacks on lesbian, gay, bisexual, transgender
and intersex activists.91 She has drawn attention to such human rights viola-
tions as arbitrary detention, torture, summary execution, arbitrary and unrea-
sonable impediments to freedom of expression, movement, association and
participation in political and public life.
84 Concluding Observations of the Human Rights Committee regarding the United States of
America, supra n. 56.
85 Concluding Observations of the Human Rights Committee regarding Poland, supra n. 57 at
para. 18.
86 Concluding Observations of the Human Rights Committee regarding El Salvador, supra n. 57
at para. 16.
87 Concluding Observations of the Committee on the Rights of the Child regarding the United
Kingdom, 9 October 2002, CRC/C/15/Add.188 at para. 43.
88 Concluding Observations of the Committee against Torture regarding Argentina, 10
December 2004, CAT/C/CR/33/1 at para. 6(g).
89 Concluding Observations of the Committee against Torture regarding Egypt, 23 December
2002, CAT/C/CR/29/4 at para. 5(e).
90 Concluding Observations of the Committee against Torture regarding Venezuela, 23
December 2002, CAT/C/CR/29/2 at para. 10(d).
Commission on Human Rights, 22 March 2006, E/CN.4/2006/95/Add.1 at para. 290.
The Special Representative has referred to the phenomenon of multiple

victimisation, where already vulnerable people face heightened risk when
promoting the rights of people of diverse sexual orientations and gender
identities. In 2002, she reported about women human rights defenders as fol-
lows: ‘women human rights defenders are paying a heavy toll for their work
in protecting and promoting the human rights of others. . . . For women
human rights defenders standing up for human rights and the victims of
human rights abuses ^ be they migrants, refugees, asylum-seekers or political
activists, or simply people unwillingly relegated to the margins of society,
such as ex-offenders and member of sexual minorities ^ can result in intimida-
tion, harassment, unfair dismissal, death threats, torture and ill-treatment,
and even death’.92 A similar point was made by the Independent Expert on
minority issues, who referred to the ‘multiple forms of exclusion’ of members
of minority communities,‘based on aspects of their identities and personal rea-
lities such as sexual orientation or gender expression that challenge social or
cultural norms’.93 The Special Rapporteur on contemporary forms of racism,
racial discrimination, xenophobia and related intolerance, has drawn attention
to problems within racial minority groups: ‘[b]lack homosexuals suffer from
double discrimination, because of their colour and sexual orientation’.94
Among the other Special Procedures that have engaged with the issues are
those on extrajudicial, summary or arbitrary executions; torture and other
cruel, inhuman or degrading treatment or punishment; freedom of religion;
promotion and protection of the right to freedom of opinion and expression;
violence against women; and sale of children, child prostitution and child
pornography.
Those Special Procedures that address issues of economic, social and cul-
tural rights have frequently drawn attention to the extent to which violations
of these rights are at issue for people of diverse sexual orientations and
gender identities. The Special Rapporteur on the right of everyone to the enjoy-
ment of the highest attainable standard of physical and mental health has
drawn wide-ranging consequences from his analysis of the state of interna-
tional human rights law. For instance, in 2004, he observed that ‘fundamental
human rights principles, as well as existing human rights norms, lead ineluc-
tably to the recognition of sexual rights as human rights. Sexual rights include
the right of all persons to express their sexual orientation, with due regard

Commission on Human Rights, 27 February 2002, E/CN.4/2002/106 at para. 83.
93 Report of the independent expert on minority issues, Commission on Human Rights,
6 January 2006, E/CN.4/2006/74 at paras 28 and 42.
94 Report of the Special Rapporteur on contemporary forms of racism, racial discrimination,
xenophobia and related intolerance, supra n. 45 at para. 40.
224 HRLR 8 (2008), 207^248
for the well-being and rights of others, without fear of persecution, denial of
liberty or social interference’.95
The regional level has also presented instances of attention by human rights
mechanisms and procedures to sexual orientation and gender identity-related
issues of the general application of human rights. For instance, country reports
and follow-up reports of the Inter-American Commission on Human Rights
have drawn attention to such violations as ‘social-cleansing’ (killing) of homo-
sexuals and the treatment of lesbian prisoners.96 The current Council of
Europe Commissioner for Human Rights, Thomas Hammarberg, repeatedly
addresses country-level sexual orientation-related concerns. His detailed and
expansive treatment of such issues in a 2007 ‘memorandum’ to the Polish gov-
ernment is noteworthy.97
The question arises of when a generally stated human right is actually lim-
ited in terms of who may benefit. For our purposes, the issue concerns when
a right exclusively addresses the situation and choices of what we might term
sexual majorities. The matter has been considered with regard to the right to
marry. The HRC, in Joslin, stated that the ‘use of the term ‘‘men and women’’
rather than the general terms used elsewhere in Part III of the Covenant, has
been consistently and uniformly understood as indicating that the treaty obli-
gation of States parties stemming from article 23, paragraph 2 of the
Covenant is to recognize as marriage only the union between a man and a
woman wishing to marry each other’.98 It is less clear whether the Covenant
recognises the rights of same-sex unmarried families. Article 23, paragraph 1
states the fundamental importance of the family and its entitlement to protec-
tion by the State, without reference to the form of family under consideration.
Only in Article 23 paragraph 2 do we find reference to the right of men and
women to marry and found families. It does not follow, however, that
Article 23 paragraph 2 restricts the meaning of the word ‘family’ in Article
23 paragraph 1, and in this regard it may be observed that in its General
Comment No. 19, the HRC has acknowledged the existence of various forms of
95 Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest
attainable standard of physical and mental health, supra n. 34 at para. 54.
96 Annual report of the Inter-American Commission on Human Rights 2006, Chapter III C (1),
OEA/Ser.L/V/II.127, Doc. 4 rev. 1, 3 March 2007, at para. 29; Fifth report on the situation of
human rights in Guatemala, Chapter V (Right to Life), Inter-American Commission on
Human Rights, OEA/Ser.L/V/II.111, Doc. 21 rev., 6 April 2001; Third report on the situation of
human rights in Paraguay, Chapter VIII (Women’s rights), Inter-American Commission on
Human Rights, OEA/Ser.L/V/II.110, Doc. 52, 9 March 2001, at paras 47^8; and Second report
on the situation of Human Rights in Colombia, Chapter VII (Right to life), Inter-American
Commission on Human Rights, OEA/Ser.L/V/II.84, Doc. 39 rev., 14 October 1993.
97 Memorandum to the Polish Government, Council of Europe Commissioner for Human Rights,
CommDH(2007)13, 20 June 2007, available at: https://wcd.coe.int/ViewDoc.jsp?
id¼1155005&Site¼CommDH&BackColorInternet¼FEC65B&BackColorIntranet¼FEC65B&
BackColorLogged¼FFC679 [last accessed 15 February 2008].
98 Joslin v New Zealand, supra n. 48 at para. 8.2.
family.99 The HRC has been willing to impugn State practices that impede
same sex couples from benefiting from family-related benefits, such as transfer
of pension entitlements (Young and X, referred to before). These cases, however,
only addressed Article 26-based issues and, in X, in a dissenting opinion
of two members, it was observed that ‘a couple of the same sex does not
constitute a family within the meaning of the Covenant and cannot claim
benefits that are based on a conception of the family as comprising individuals
of different sexes’.100
The ECtHR, in a number of cases, had held that marriage, for purposes of
the ECHR is the union of two persons of the ‘opposite biological sex’101 but, in
Goodwin, it indicated that the determination of sex cannot be undertaken
with solely biological criteria, so that an individual who has had a sex change
operation has a right to marry someone of the now opposite sex.102 While not
specifically addressing the issue of any distinction between families and mar-
riages, the ECtHR has frequently indicated that homosexual stable relation-
ships are not equivalent in rights to heterosexual relationships.103 However, in
the Salguiero da Silva Mouta case, the ECtHR found a violation of the right to
family life of a man in a homosexual relationship, albeit the family unit
under consideration was that of the man and his daughter rather than that of
him and his partner.104 And, in Goodwin, the ECtHR was willing to interpret
the term in Article 8 of the ECHR, ‘the right of a man and a woman to marry’
in a flexible manner taking account of changes in society.105 It is beyond the
scope of the present article to explore this issue further, other than to take
account of the various other sources which lean towards flexible understand-
ing of the term ‘family’,106 as well as the increasing recognition by States of
diversity of family forms, as reflected in the Declaration on the International
Year of the Family.107
99 Human Rights Committee, General Comment No. 19: Protection of the family, the right to
marriage and equality of the spouses, HRI/GEN/1/Rev.1, 27 June 1990.
100 X v Colombia, supra n. 53.
101 See, for example, Sheffield and Horsham v United Kingdom (1999) 27 EHRR 163.
102 Goodwin v United Kingdom, supra n. 76 at para. 100.
103 See the citations and discussion in Walker, ‘Moving Gaily Forward? Lesbian, Gay and
Transgender Human Rights in Europe’, (2001) 2 Melbourne Journal of International Law 122.
104 Salgueiro da Silva Mouta v Portugal, supra n. 63.
105 Goodwin v United Kingdom, supra n. 76 at paras 98^104.
106 See, for example, Committee on the Rights of the Child, Day of General Discussion on
‘Children without Parental Care’, 40th session, Geneva, 12^30 September 2005, CRC/C/153 at
para. 644; Minister of Home Affairs and another v Fourie and another, South African
Constitutional Court, Case CCT 60/04, 1 December 2005, at para. 101, available at: http://
news.findlaw.com/wp/docs/glrts/mhafourie120105.pdf [last accessed 15 February 2008].
107 See GA Res. 44/82, International Year of the Family, 8 December 1989, A/RES/44/82, which in
para. 3 refers to ‘the main recommendations, objectives and principles for the observance of
the Year, as contained in the comprehensive outline of a possible programme for the Year’.
These principles stipulate that ‘families assume diverse forms and functions among
and within countries’, see Report of the Secretary-General on the Observance of the
International Year of the Family, UN General Assembly, 6 September 1995, A/50/370
226 HRLR 8 (2008), 207^248
D. Some General Trends in Human Rights Law that Have Important

Implications for the Enjoyment of Human Rights by People of Diverse
Sexual Orientations and Gender Identities
An examination of the human rights of people of diverse sexual orientations
and gender identities would be incomplete without a brief reference to the evol-
ving understanding of the duties that fall to States and the entitlements of
the rights holder. Reference has already been made to those wide-ranging
aspects of the human rights obligations that have been charted by the UN
Special Procedures. Of more immediate normative significance are those
recent General Comments of the United Nations human rights treaty bodies108
that have emphasised that States are obliged to undertake effective pro-
grammes of education and public awareness about human rights and must
otherwise seek to enable people to fully enjoy their entitlements. They must
be assiduous in protecting rights, establishing appropriate monitoring and pro-
motional institutions, as well as investigating and disciplining violations.
Victims of human rights violations are entitled to redress and reparation and
those who defend and promote human rights must be protected.
More generally, the programmatic implications of the duty that falls on
States are being clarified within the context of the theory and practice of the
human rights-based approaches to development (RBAD). The principal ele-
ments of the rights-based approach have been indicated in a statement of a
common position of all of the UN agencies engaged in the work of human
development, the Statement of Common Understanding, adopted at Stamford,
Connecticut, USA (the Stamford Statement) in May 2003.109 The Stamford
Statement asserts that all programmes of development co-operation, policies
and technical assistance should further the realisation of human rights as
laid down in the Universal Declaration of Human Rights (UDHR) and other
international human rights instruments and that development co-operation
contributes to the development of the capacity of ‘duty-bearers’110 to meet
at para. 14. See also: UN General Assembly, Celebration of the tenth anniversary of the
International Year of the Family and beyond, 25 January 2005, A/RES/59/147 at preambula-
tory para. 2.
108 Human Rights Committee, General Comment No. 31: Nature of the general legal obligation
imposed on States Parties to the Covenant, CCPR/C/21/Rev.1/Add.13, 26 May 2004;
Committee on Economic, Social and Cultural Rights, General Comment No. 3: The nature of
States parties obligations, E/1991/23, 14 December 1990; Committee on Economic, Social and
Cultural Rights, General Comment No. 9: The domestic application of the Covenant, E/C.12/
1998/24, 3 December 1998; and Committee on the Rights of the Child, General Comment No.
5: General measures of implementation of the Convention on the Rights of the Child, CRC/
GC/2003/5, 27 November 2003.
109 Report of the Second Interagency Workshop on Implementing a Human Rights-Based
Approach in the Context of UN Reform, Stamford, Connecticut, 5^7 May 2003, available at:
http://www.undg.org/archive_docs/4128-Human_Rights_Workshop__Stamford___Final_Report.doc
[last accessed 15 February 2008].
110 See O’Flaherty, ‘Keynote address’ to Our Rights, Our Future: Human Rights Based Approaches in
Ireland, Amnesty International Conference, Dublin, 27 September 2005.
their obligations and/or of ‘rights-holders’ to claim their rights. The Statement

identifies a number of elements which it considers as ‘necessary, specific and
unique to a RBAD:
(i) Assessment and analysis in order to identify the human rights claims
of rights-holders and the corresponding human rights obligations of
duty-bearers111 as well as the immediate, underlying, and structural
causes of the non-realisation of rights.
(ii) Programmes assess the capacity of rights-holders to claim their rights
and of duty-bearers to fulfil their obligations. They then develop strate-
gies to build these capacities.
(iii) Programmes monitor and evaluate both outcomes and processes
guided by human rights standards and principles.
(iv) Programming is informed by the recommendations of international
human rights bodies and mechanisms’.
Of most direct interest for the present discussion are the principles derived
from human rights law which are identified as integral to a RBAD. These are
described in the Stamford Statement to be: universality and inalienability;
inter-dependedness and inter-relatedness; non-discrimination and equality;
participation and inclusion; and accountability and the rule of law.
This elaboration in General Comments as well as in RBAD theory of the
nature of human rights entitlements and duties has obvious implications for
the human rights of people of diverse sexual orientations and gender identities.
They can, as a matter of right, demand that the promotion and protection of
their rights be undertaken in a vigorous, consistent and comprehensive
manner. They are entitled to have their welfare and well-being placed at the
heart of the state’s policy making and public programming. Moreover, they
have the right to be participants in the elaboration and implementation of
such policies and programmes. Indeed, one can, without hyperbole, refer as a
matter of law to the human right of all persons, regardless of and in full respect
for their sexual orientations and gender identities, to live honoured and digni-
fied lives within society.
3. Impact of the Law and Jurisprudence for the

Protection of the Human Rights of People of Diverse
Sexual Orientations and Gender Identities
Notwithstanding the extent to which applicable legal standards have been clar-
ified and articulated, the response of States and intergovernmental organisa-
tions to human rights violations based on sexual orientation or gender
111 Ibid.
228 HRLR 8 (2008), 207^248
identity has been equivocal and inconsistent. The Special Representative of the
Secretary General on human rights defenders has expressed concern at the
‘almost complete lack of seriousness’ with which human rights violations based
on sexual orientation or gender identity are treated by the concerned authori-
ties.112 The High Commissioner for Human Rights has noted the ‘shameful
silence’ surrounding such violations and the fact that ‘violence against LGBT
persons is frequently unreported, undocumented and goes ultimately unpun-
ished’.113 A number of States do not acknowledge that human rights violations
based on sexual orientation or gender identity constitute legitimate areas of
human rights concern. For example, a letter distributed to all State Missions
in Geneva by Pakistan on behalf of the Organization of the Islamic Conference
asserted that ‘sexual orientation is not a human rights issue’.114 When criti-
cised by the Special Rapporteur on extrajudicial executions for maintaining
the death penalty for homosexuality,115 Nigeria responded that ‘the death pen-
alty by stoning under Shari’a law for unnatural sexual acts . . . should not be
equated with extrajudicial killings, and indeed should not have featured in
the report’.116 Similarly, the United Republic of Tanzania opposed granting UN
accreditation to non-governmental organisations (NGOs) working to address
human rights violations based on sexual orientation, on the grounds that
such matters were ‘not relevant to our work’.117
NGOs working on issues of sexual orientation and gender identity have
faced challenges to their participation in UN activities. At the UN General
Assembly Special Session on HIV/AIDS in June 2001, a representative of the
International Gay and Lesbian Human Rights Commission had been chosen,
along with other representatives from governments, NGOs and UN agencies,
to participate in an official roundtable discussion on HIV/AIDS and human
rights. Following objections from a number of States, she was excluded and
supra n. 33 at para. 95.
113 Presentation of the United Nations High Commissioner for Human Rights Ms Louise Arbour
to the International Conference on Lesbian, Gay, Bisexual and Transgender Rights,
Montreal, 26 July 2006, available at: http://www.unhchr.ch/huricane/huricane.nsf/view01/
B91AE52651D33F0DC12571BE002F172C?opendocument [last accessed 15 February 2008].
114 Letter from the Ambassador and Permanent Representative of the Permanent Mission of
Pakistan, Geneva, 26 February 2004.
115 ARC International, ‘Recognizing Human Rights Violations Based on Sexual Orientation and
Gender Identity at the Human Rights Council, Session 2’, 18 September ^ 6 October 2006,
available at: http://www.arc-international.net/HRC2report.html [last accessed 15 February
2008].
116 Ibid.
117 See notes of meeting, ECOSOC, July 2006, on file with the second author of the present article.
See also: United Nations Information Service. ‘Economic and Social Council Takes Action on
Texts Concerning Consultative Status of Non-Governmental Organizations’, Press Release,
ECOSOC/6231, 25 July 2006, available at: http://www.unis.unvienna.org/unis/pressrels/2006/
ecosoc6231.html [last accessed 15 February 2008].
only allowed to take the floor after debate and vote in the General Assembly.118
The same year, the International Lesbian and Gay Association, along with hun-
dreds of other NGOs, sought accreditation to the United Nations World
Conference against Racism, Racial Discrimination, Xenophobia and Related
Intolerance. Following an objection by Malaysia on behalf of the Organization
of the Islamic Conference, its accreditation was put to a vote, resulting in a
43^43 tie and the denial of accreditation.119 The NGO Committee of the UN
Economic and Social Council (ECOSOC) has persistently denied UN consulta-
tive status to NGOs working on issues of sexual orientation and gender identity,
a decision seemingly inconsistent with an ECOSOC resolution requiring that
the ‘full diversity of non-governmental organisations’ be taken into account
when determining matters of accreditation.120 Such status governs whether
NGOs can participate in UN activities, including by accessing UN premises,
attending international meetings, submitting written statements, making oral
interventions and hosting parallel panel discussions. The plenary ECOSOC has
reviewed and overturned these rejections,121 although in subsequent meetings
the NGO Committee has continued to defer or deny applications submitted by
NGOs working on these issues, with the result that NGOs seeking to address
matters of sexual orientation or gender identity must continue to fight for the
recognition routinely granted to NGOs working on other issues.
States that have sought to promote the human rights of people of
diverse sexual orientations and gender identities in international fora have
also faced difficulties. When Brazil presented a resolution at the former
UN Commission on Human Rights in 2003 condemning human rights
violations based on sexual orientation, States opposed to consideration of
the resolution brought a ‘no action’ motion in an attempt to prevent the
Commission from considering the issue. When the motion was narrowly
defeated, these States threatened to bring hundreds of amendments to the
text, resulting in a decision by the Commission to defer the resolution until
118 Rothschild, supra n. 10 at 111^2; and Sanders, ‘Human Rights and Sexual Orientation in
International Law’, 23 November 2004 at 23^5, available at: http://www.ai-lgbt.org/resources_
other.htm [last accessed 15 February 2008].
119 Sanders, ibid. at 25.
120 ECOSOC Res. 1996/31, 25 July 1996 at preambulatory para. 4. See also GA Res. 60/251,
3 April 2006, establishing the Human Rights Council, which affirms the importance of NGO
involvement in the work of the Council.
121 In 2006, the ECOSOC agreed to reject the application of the International Lesbian and Gay
Association (ILGA), but overturned the denial of status to three other NGOs: Danish
National Association for Gays and Lesbians, the Lesbian and Gay Federation in Germany
and ILGA-Europe. In 2007, the ECOSOC overturned the denial of status, granting accredita-
tion to the two applicant NGOs, Coalition gaie et lesbienne du Que¤bec and the Swedish
Federation for Lesbian, Gay, Bisexual and Transgender Rights. See United Nations
Information Service, ‘NGO Committee Recommends Three Organizations for Special
Consultative Status with Economic and Social Council’, Press Release, ECOSOC/6254 NGO/
615, 31 January 2007, available at: http://www.un.org/News/Press/docs/2007/ecosoc6254.-
doc.htm [last accessed 15 February 2008].
230 HRLR 8 (2008), 207^248
its 2004 session.122 At the 2004 session, Brazil was pressured to further defer
consideration of the resolution, indicating in a press release that it had ‘not
yet been able to arrive at a necessary consensus’.123 A statement of the Chair
was adopted, carrying the resolution over until 2005. In 2005, Brazil did not
proceed with the resolution, which therefore lapsed on the Commission
agenda.
Although ultimately not pursued, the Brazilian resolution on sexual orien-
tation and human rights did raise States’awareness of the issues, and mobilised
NGOs from all regions to engage in UN processes.124 When it became apparent
that the resolution would not be discussed in 2005, New Zealand delivered a
joint statement on sexual orientation and human rights on behalf of a cross-
regional grouping of 32 States,125 asserting that States ‘cannot ignore’ the evi-
dence of human rights violations based on sexual orientation, and calling for
the Commission to respond. By the December 2006 session of the Human
Rights Council, support for a similar joint statement delivered by Norway had
grown to 54 States, from four of the five UN regions.126 This statement
acknowledged that the Council had received extensive evidence of human
rights violations based on sexual orientation and gender identity, commended
the work of NGOs, Special Procedures and treaty bodies in this area, called
upon all Special Procedures and treaty bodies to integrate consideration of
human rights violations based on sexual orientation and gender identity
within their relevant mandates, and urged the President of the Council to allo-
cate time for a discussion of these issues at an appropriate future session.
The Norwegian joint statement also represented the first time that ‘gender
identity’ had been included in a UN statement.
Some recognition of these concerns had already been articulated in UN
resolutions, although this has thus far been limited to resolutions addressing
matters of extrajudicial executions and the death penalty, rather than the full
range of human rights violations identified by the Special Procedures. The
122 Report on the 59th session, Commission on Human Rights, 17 March ^ 24 April 2003, E/CN.4/
2003/135 at paras 575^85.
123 Press Release, Permanent Mission of Brazil to the United Nations, Geneva, 29 March 2004.
124 See, for instance, ILGA,‘ICFTU,The International Confederation of Free Trade Unions Supports
the Brazilian Resolution’, Press Release, 2 June 2004; African rapport, ‘Campaign in Support
of the Brazilian Resolution 2005’, 6 February 2005. ILGA, in collaboration with other NGOs
started a campaign in 2003 and 2004 to support the Brazilian resolution. For a summary of
the activities, see ‘ILGA - Supporting the Brazilian resolution’, 4 June 2004, available at:
http://www.ilga.org/news_results.asp?LanguageID¼1&FileCategory¼44&ZoneID¼7&
FileID¼151 [last accessed 15 February 2008].
125 Statement made by New Zealand on behalf of 32 States under agenda Item 17: Promotion and
protection of human rights, Commission on Human Rights, 61st session, 14 March ^
22 April 2005, available at: http://www.mfat.govt.nz/Media-and-publications/Media/MFAT-
speeches/2005/0-15-April-2005a.php [last accessed 15 February 2008].
126 Norwegian joint statement on human rights violations based on sexual orientation and
gender identity, Human Rights Council, 3rd session, Geneva, 1 December 2006, available
at: http://uklgig.org.uk/docs/Norwegian_Joint_Statement-UNHRC_06.doc [last accessed
15 February 2008].
former Commission on Human Rights adopted a resolution on extrajudicial

executions in each of 2000, 2002, 2003, 2004 and 2005, expressly affirming
the obligation of States to ‘protect the inherent right to life of all persons
under their jurisdiction’ and calling upon States to investigate promptly and
thoroughly ‘all cases of killings including those . . . committed for any discrimi-
natory reason, including sexual orientation’.127 ‘Gender identity’ was also
included in a draft of this resolution in 2005, and received widespread support,
representing the first time that language to explicitly protect the rights of
transgender people has been presented in a UN forum, although the reference
was removed from the text by sponsoring States before the resolution came to
a vote in order to ensure adoption of the resolution. The resolution on the
death penalty, adopted each year by the former Commission, recalled that the
death penalty may not be imposed for any but the ‘most serious crimes’, and
called upon States ‘to ensure that the notion of ‘‘most serious crimes’’ does not
go beyond intentional crimes with lethal or extremely grave consequences
and that the death penalty is not imposed for non-violent acts such as . . . sex-
ual relations between consenting adults’.128
Although, as already noted, a number of Special Procedures have con-
sistently addressed relevant sexual orientation and gender identity issues fall-
ing within their mandate,129 practice, overall, is inconsistent. During the
Interactive Dialogue at the September 2006 session of the Human Rights
Council, for example, the Special Rapporteur on the promotion and protection
of the right to freedom of opinion and expression indicated that the question
of sexual orientation ‘was not debated’ when his mandate was created, and he
appeared to believe he required more explicit authorisation before addressing
human rights violations on this ground.130 Similarly, although a number of
the treaty bodies regularly address issues of sexual orientation and gender
identity, and engage States in discussion of these issues during consideration
of country reports, there is a great deal of room for them to integrate these
issues more systematically within consideration of State reports, Concluding
Observations and General Comments.
127 CHR Resolution, 20 April 2005, E/CN.4/RES/2005/34 at para. 5; CHR Resolution, 19 April
2004, E/CN.4/RES/2004/37 at para. 6; CHR Resolution, 24 April 2003, E/CN.4/RES/2003/53
at para. 5; CHR Resolution, 22 April 2002, E/CN.4/RES/2002/36 at para. 6; and CHR
Resolution, 20 April 2000, E/CN.4/RES/2000/31 at para. 6.
128 CHR Resolution, 20 April 2005, E/CN.4/RES/2005/59 at para. 7(f); CHR Resolution, 21 April
2004, E/CN.4/RES/2004/67 at para. 4(f); CHR Resolution, 25 April 2003, E/CN.4/RES/2003/
67 at para. 4(d); and CHR Resolution, 25 April 2002, E/CN.4/RES/2002/77 at para. 4(c).
129 See International Commission of Jurists, supra n. 2 at 48^156.
130 Statement of the Special Rapporteur on the promotion and protection of the right to freedom
of opinion and expression, Interactive Dialogue, Human Rights Council, 2nd session,
8 September ^ 6 October 2006.
232 HRLR 8 (2008), 207^248
4. The Yogyakarta Process

The High Commissioner for Human Rights, Louise Arbour, has expressed con-
cern about the inconsistency of approach in law and practice. In an address
to a lesbian, gay, bisexual and transgender forum, she suggested that although
the principles of universality and non-discrimination apply to the grounds of
sexual orientation and gender identity, there is a need for a more comprehen-
sive articulation of these rights in international law, ‘(i)t is precisely in this
meeting between the normative work of States and the interpretive functions
of international expert bodies that a common ground can begin to emerge’.131
Furthermore, commentators have suggested that international practice could
also benefit from the application of more consistent terminology to address
issues of sexual orientation and gender identity.132 While some Special
Procedures, treaty bodies and States have preferred speaking of ‘sexual orienta-
tion’ or ‘gender identity’, others speak of ‘lesbians’, ‘gays’, ‘transgender’ or ‘trans-
sexual’ people, and still others speak of ‘sexual preference’ or use the language
of ‘sexual minorities’. In addition, issues of gender identity have been little
understood, with some mechanisms and States referencing transsexuality as
a ‘sexual orientation’, and others frankly acknowledging that they do not
understand the term.133
It is in this context of such diverse approaches, inconsistency, gaps and
opportunities that the Yogyakarta Principles on the application of international
human rights law in relation to sexual orientation and gender identity
(the Yogyakarta Principles)134 were conceived. The proposal to develop the
Yogyakarta Principles originated, in 2005, with a coalition of human rights
NGOs that was subsequently facilitated by the International Service for
Human Rights and the International Commission of Jurists. It was proposed
that the Principles have a tri-partite function.135 In the first place they should
131 Presentation of the United Nations High Commissioner for Human Rights Ms Louise Arbour
to the International Conference on Lesbian, Gay, Bisexual, and Transgender Rights,
Montreal, 26 July 2006, available at: http://www.unhchr.ch/huricane/huricane.nsf/view01/
B91AE52651D33F0DC12571BE002F172?opendocument [last accessed 15 February 2008].
132 ARC International, ‘A Place at the Table: Global Advocacy on Sexual Orientation and Gender
Identity - And the International Response’, November 2006.
133 See ARC International,‘Out at the UN: Advancing Human Rights Based on Sexual Orientation
and Gender Identity at the 61st Session of the UN Commission on Human Rights’, March ^
April 2005, available at: http://www.rightsaustralia.org.au/data/ARC%20CHR%
20Report%202005.pdf [last accessed 15 February 2008].
134 Available at: http://www.yogyakartaprinciples.org/principles__en.htm [last accessed
15 February 2008]. See also International Commission of Jurists, supra n. 2; International
Commission of Jurists, ‘Sexual Orientation and Gender Identity in Human Rights Law,
References to Jurisprudence and Doctrine of the Inter-American System’, July 2007, available
at: http://www.icj.org/IMG/Inter-American_References.pdf [last accessed 15 February 2008];
International Commission of Jurists, ‘Sexual Orientation and Gender Identity in Human
Rights Law, Jurisprudential, Legislative and Doctrinal References from the Council of Europe
and the European Union’, October 2007, available at: http://www.icj.org/IMG/
European_Compilation-web.pdf [last accessed 15 February 2008].
135 Address of the Rapporteur at the launch event of the Principles, Geneva, March 2007.
constitute a ‘mapping’ of the experiences of human rights violations experi-

enced by people of diverse sexual orientations and gender identities. This exer-
cise should be as inclusive and wide ranging as possible, taking account of
the distinct ways in which human rights violations may be experienced in dif-
ferent regions of the world. Second, the application of international human
rights law to such experiences should be articulated in as clear and precise
a manner as possible. Finally, the Principles should spell out in some detail
the nature of the obligation on States for effective implementation of each of
the human rights obligations.
Twenty-nine experts were invited to undertake the drafting of the
Principles. They came from 25 countries representative of all geographic
regions. They included one former UN High Commissioner for Human Rights
(Mary Robinson, also a former head of state), 13 current or former UN human
rights special mechanism office holders or treaty body members, two serving
judges of domestic courts and a number of academics and activists. Seventeen
of the experts were women.136 The first of the present authors was one
136 The experts who adopted the Yogyakarta Principles are: Philip Alston (Australia), UN Special
Rapporteur on extrajudicial, summary and arbitrary executions and Professor of Law,
School of Law, New York University, United States of America; Maxim Anmeghichean
(Moldova), European Region of the International Lesbian and Gay Association; Mauro Cabral
(Argentina), Universidad Nacional de Cordoba, International Gay and Lesbian Human Rights
Commission; Edwin Cameron (South Africa), Justice, Supreme Court of Appeal, Bloemfontein,
South Africa; Sonia Onufer Corre“a (Brazil), Research Associate at the Brazilian
Interdisciplinary AIDS Association (ABIA) and Co-chair of the International Working Group
on Sexuality and Social Policy (Co-chair of the experts’ meeting); Yakin Ertu«rk (Turkey), UN
Special Rapporteur on violence against women, Professor, Department of Sociology, Middle
East Technical University, Ankara, Turkey; Elizabeth Evatt (Australia), former Member and
Chair of the UN Committee on the Elimination of Discrimination Against Women, former
Member of the UN Human Rights Committee and Commissioner of the International
Commission of Jurists; Paul Hunt (New Zealand), UN Special Rapporteur on the right to the
highest attainable standard of health and Professor of Law, Department of Law, University of
Essex, United Kingdom; Asma Jahangir (Pakistan), Chairperson, Human Rights Commission
of Pakistan; Maina Kiai (Kenya), Chairperson, Kenya National Commission on Human
Rights; Miloon Kothari (India), UN Special Rapporteur on the right to adequate housing;
Judith Mesquita (United Kingdom), Senior Research Officer, Human Rights Centre, University
of Essex, United Kingdom; Alice M. Miller (United States of America), Assistant Professor,
School of Public Health, Co-director of the Human Rights Program, Columbia University;
Sanji Mmasenono Monageng (Botswana), Judge of the High Court (The Republic of the
Gambia), Commissioner of the African Commission on Human and Peoples’ Rights,
Chairperson of the Follow Up Committee on the implementation of the Robben Island
Guidelines on prohibition and prevention of torture and other cruel, inhuman or degrading
treatment (African Commission on Human and Peoples’ Rights); Vitit Muntarbhorn
(Thailand), UN Special Rapporteur on the human rights situation in the Democratic People’s
Republic of Korea and Professor of Law, Chulalongkorn University, Thailand (Co-chair of the
experts’ meeting); Lawrence Mute (Kenya), Commissioner of the Kenya National Commission
on Human Rights; Manfred Nowak (Austria), Professor and Co-director of the Ludwig
Boltzmann Institute of Human Rights, Austria, and UN Human Rights Council Special
Rapporteur on Torture and other Cruel, Inhuman or Degrading Treatment; Ana Elena
Obando Mendoza (Costa Rica), feminist attorney, women’s human rights activist, and interna-
tional consultant; Michael O’Flaherty (Ireland), Member of the UN Human Rights Committee,
Professor of Applied Human Rights and Co-director of the Human Rights Law Centre,
School of Law, University of Nottingham, and Rapporteur for the development of the
234 HRLR 8 (2008), 207^248
of the experts. He also served as rapporteur of the process, responsible for pro-
posing various formulations and capturing various expert views in a single
agreed text. The drafting process took place over a period of some 12 months
during 2006^07. While much of the drafting was done by means of electronic
communications, many of the experts met at an international seminar that
took place in Yogyakarta, Indonesia at Gadjah Mada University from 6 to
9 November 2006 to review and finalise the text. All of the text was agreed
by consensus.
Although initially some participants envisioned a very concise statement of
legal principles, expressed in general terms, the seminar eventually reached
the view that the complexity of circumstances of victims of human rights vio-
lations required a highly elaborated approach. They also considered that the
text should be expressed in a manner that reflected the formulations in the
international human rights treaties, whereby its authority as a statement of
the legal standards would be reinforced.
There are 29 principles. Each of these comprises a statement of interna-
tional human rights law, its application to a given situation and an indication
of the nature of the State’s duty to implement the legal obligation. There is
some order to the Principles. Principles 1 to 3 set out the principles of the uni-
versality of human rights and their application to all persons without discrimi-
nation, as well as the right of all people to recognition before the law. The
experts placed these elements at the beginning of the text in order to recall
the primordial significance of the universality of human rights and the scale
and extent of discrimination targeted against people of diverse sexual orienta-
tions and gender identities, as well as the manner in which they
are commonly rendered invisible within a society and its legal structures.
Principles 4 to 11 address fundamental rights to life, freedom from violence
and torture, privacy, access to justice and freedom from arbitrary detention.
Principles 12 to 18 set out the importance of non-discrimination in the enjoy-
ment of economic, social and cultural rights, including employment,
Yogyakarta Principles; Sunil Pant (Nepal), President of the Blue Diamond Society, Nepal;
Dimitrina Petrova (Bulgaria), Executive Director, The Equal Rights Trust; Rudi Muhammad
Rizki (Indonesia), UN Special Rapporteur on international solidarity, and Senior Lecturer
and the Vice Dean for Academic Affairs, Faculty of Law, University of Padjadjaran, Indonesia;
Mary Robinson (Ireland), Founder of Realizing Rights: The Ethical Globalization Initiative,
former President of Ireland, and former United Nations High Commissioner for Human
Rights; Nevena Vuckovic Sahovic (Serbia and Montenegro), Member of the UN Committee on
the Rights of the Child, and President of the Child Rights Centre, Belgrade, Serbia
Montenegro; Martin Scheinin (Finland), UN Special Rapporteur on counterterrorism,
Professor of Constitutional and International Law, and Director of the Institute for Human
Rights, Finland; Wan Yanhai (China), founder of the AIZHI Action Project and Director of
Beijing AIZHIXING Institute of Health Education, China; Stephen Whittle (United Kingdom),
Professor in Equalities Law, Manchester Metropolitan University, United Kingdom; Roman
Wieruszewski (Poland), Member of the UN Human Rights Committee, and Head of Poznan
Centre for Human Rights, Poland; and Robert Wintemute (United Kingdom), Professor of
Human Rights Law, School of Law, King’s College London, United Kingdom.
accommodation, social security, education and health. Principles 19 to 21

emphasise the importance of the freedom to express oneself, one’s identity
and one’s sexuality, without State interference based on sexual orientation or
gender identity, including the rights to participate peaceably in public assem-
blies and events and otherwise associate in community with others.
Principles 22 and 23 highlight the rights of persons to seek asylum from perse-
cution based on sexual orientation or gender identity. Principles 24 to 26
address the rights of persons to participate in family life, public affairs and
the cultural life of their community, without discrimination based on sexual
orientation or gender identity. Principle 27 recognises the right to defend and
promote human rights without discrimination based on sexual orientation
and gender identity, and the obligation of States to ensure the protection of
human rights defenders working in these areas. Principles 28 and 29 affirm
the importance of holding rights violators accountable, and ensuring appropri-
ate redress for those who face rights violations.
Most of the principles are titled in a manner that directly reflects the provi-
sions of human rights treaties: right to education, highest attainable standard
of health, etc. Those that differ are so phrased either to more specifically
address a problematic situation (Principle 18, Protection from Medical Abuse),
or to better reflect an accepted legal standard that does not derive from
any one specific treaty provision (the principles on promotion of human
rightsç27, effective remediesç28 and accountabilityç29).
The content of each Principle reflects the particular human rights chal-
lenges that the experts identified as well as the precise application of the law
for that situation. As such, they vary widely in style and category of contents.
However, a general typology for the legal obligations of States can be observed:
(i) all necessary legislative, administrative and other measures to eradicate
impugned practices; (ii) protection measures for those at risk; (iii) accountabil-
ity of perpetrators and redress for victims; and, (iv) promotion of a human
rights culture by means of education, training and public awareness-raising.
It may thus be observed that the Principles take account of the manner in
which UN human rights treaty bodies in their General Comments, as well as
the theory of rights-based approaches, as discussed earlier, are informing con-
temporary understanding of the State’s implementation obligation.137
As has already been noted, the experts sought to capture the existing state
of international law. The present authors, based on a review of the consistency
of the Principles with their understanding of the law (as presented in the pre-
sent article), suggest that this goal was achieved. It may be argued, however,
that in some cases, the Principles could have gone further in identifying the
application of the law for certain situations. For instance, Principle 19, on
the right to freedom of opinion and expression, where identifying the duty of
137 See supra n. 108.

236 HRLR 8 (2008), 207^248
the State to regulate the media to avoid discrimination, only refers to media
that is ‘State-regulated’. While it is surely correct that such media should be
prohibited from discriminatory practices and outputs it is not evident that the
duty should not also be extended to non-state regulated media. In cases such
as this we may observe the experts taking account of legal uncertainties
regarding the reach of non-discrimination law into the private sphere, as dis-
cussed earlier. In a small number of other instances, the Principles are some-
what vague and non-prescriptive, perhaps again reflecting the uncertain state
of law or its application. This may explain the provision at Principle 21(b)
that ‘expression, practice and promotion of different opinions, convictions and
beliefs with regard to sexual orientation or gender identity is not undertaken
in a manner incompatible with human rights’. Thus expressed it is unclear,
for instance, whether a faith community could exclude someone from member-
ship on grounds of sexual orientation, albeit the Principle, at a minimum,
would require reflection as to the legitimacy in law of such an exclusion.
Another criticism that may be directed to the Principles is that, notwithstand-
ing a concerted effort to address specific fact circumstances, they are not com-
prehensive in this regard. For instance, it has been suggested that they could
usefully have referred to issues of access to medicines in least-developed coun-
tries138 and to the phenomenon of domestic violence in same-sex house-
holds.139 Undoubtedly, as the Principles generate further commentary,
additional omissions will be identified.
The desire for consistency with the existing law resulted in the deliberate
omission from the final text of a number of elements that had been considered
during the drafting phase. For instance, there is no expression of a right to
non-heterosexual marriage. Instead, Principle 24 on the right to found a
family, at paragraph (e) only speaks of a right to non-discriminatory treatment
of same-sex marriage in those States which already recognise it.
It is noteworthy that the Principles are expressed in exclusively gender-
neutral terms. The approach was deliberately adopted in order to ensure the
application of all aspects of the Principles with regard to the life experience of
people regardless of and with full respect for whatever gender identity they
may have, while also avoiding binary constructions of gender. This achieve-
ment came at the price of the invisibility in the text of any reference to the par-
ticular situation and issues of women. It may be considered that this omission
detracts from the capacity of the document to forcefully address the problems
confronting lesbians in numerous countries.
The experts added a short 9-paragraph preamble to the Principles, but only
after some debate, focussing on such matters as the avoidance of additional
138 Comment made to the present authors by an activist in Sub-Saharan Africa.

139 Comment made to the present authors by an activist who addresses issues of domestic
violence.
text that might detract from the Principles themselves. The preamble provides
a context for the document, referring to the experiences of suffering and discri-
mination faced by people because of their actual or perceived sexual orienta-
tion or gender identity, the extent to which international human rights law
already addresses these situations and the ‘significant value in articulating
[this law] in a systematic manner’. Notably, the preamble contains definitions
of ‘sexual orientation’ and ‘gender identity’. These formulations, drawing on
those definitions widely in use within advocacy communities, establish a per-
sonal scope of application for the Principles. The preface also includes refer-
ences that acknowledge the imperfections of the text and the need to keep its
contents under review with a view to future reformulations that would take
account of legal changes as well as developing understandings of the situation
of people of diverse sexual orientations and gender identities.
While the Principles are addressed to States, as the duty-bearers in interna-
tional human rights law, the experts considered that they should also make
recommendations to other actors with relevance for the promotion and pro-
tection of human rights of people of diverse sexual orientations and gender
identities. There are 16 such recommendations directed to international inter-
governmental and non-governmental bodies, international judicial and other
human rights treaty bodies, national human rights institutions, commercial
organisations, and others.
5. Assessment of Dissemination and Impact of

the Principles
The Yogyakarta Principles were launched on 26 March 2007, at a public
event timed to coincide with the main session of the United Nations
Human Rights Council in Geneva. Attended by Ambassadors, other State dele-
gates, a former UN High Commissioner for Human Rights, UN Special
Procedures, members of treaty bodies, participating experts and NGO represen-
tatives, the launch served as a focal point to move the Yogyakarta Principles
onto the international agenda. Immediate discussion of the Principles
at the Human Rights Council was encouraged by means of the convening of
a Council side-event panel discussion. There have been numerous other
launch-related events since, including a presentation of the Principles at an
event in UN Headquarters in New York on 7 November 2007, co-hosted by
the Governments of Brazil, Argentina and Uruguay, in conjunction with
the Third Committee of the General Assembly, and attended by
diplomatic representatives of some 20 States.140 The Principles are available
140 See International Service for Human Rights, Human Rights Watch and International Gay and
Lesbian Human Rights Commission, ‘Launching the Yogyakarta Principles in New York.
238 HRLR 8 (2008), 207^248
on-line,141 and have been published in the six official languages of the United
Nations: English, French, Spanish, Russian, Chinese and Arabic. In addition to
the official translations, NGOs have prepared translations of the Principles in
Nepali, Indonesian, German and Portuguese, an annotated version of the
Principles has recently been completed to identify the jurisprudential basis for
each of the Principles, an international Youth Coalition is preparing a ‘youth-
friendly’ version of the Principles, and work has begun on an Activists’ Guide
to strengthen the use of the Principles as a tool for advocacy.
A preliminary assessment of the impact of the Yogyakarta Principles can be
undertaken by means of an evaluation of the impact they have had since
their launch. In this regard, it is of interest to identify the extent to which
their addressees, primarily States, but also such actors as international organi-
sations, Special Procedures, treaty bodies and civil society, have reacted.
Given the ongoing process of dissemination and the extent to which many
initiatives are not reported internationally, it is not possible for such a review
to be exhaustive. Instead, the present authors closely examine reactions
within the context of the various UN fora and take note of the more significant
of the other reported reactions.
A. Reaction by States and other Actors within United Nations Fora

This is not a propitious time at which to launch major human rights initiatives
at the UN. That organisation is in a phase of reform and, in the context of the
Human Rights Council, pre-occupied with institutional development, some-
times detracting from its ability to focus on substantive human rights.142
Taking account of this, as well as of the relatively short period of time since
the launch of the Principles and the generally slow pace of change within
international mechanisms, one may conclude that the dissemination of the
Principles has met with a surprising degree of success. A number of member
and observer States have already cited them in Council proceedings. Within
days of the Geneva launch, more than 30 States made positive interventions
on sexual orientation and gender identity issues, with seven States specifically
referring to the Yogyakarta Principles,143 describing them as ‘groundbreaking’,
Summary of the Panel Discussion on the Yogyakarta Principles on the Application of

International Law in Relation to Issues of Sexual Orientation and Gender Identity’,
New York, 7 November 2007, available at: http://www.sxpolitics.org/mambo452/
index.php?option¼com_content&task¼view&id¼126 [last accessed 15 February 2008].
141 Supra n. 134.
142 See Hicks and Gillioz, ‘The Challenges Facing Non-Governmental Organisations’ in Mu«ller
(ed.), The First 365 Days of the United Nations Human Rights Council (Bern: Federal
Department of Foreign Affairs of Switzerland, 2007) 199 at 202.
143 The Czech Republic, Switzerland and the Nordic Countries Denmark, Finland, Iceland,
Sweden and Norway, cited in ARC International, ‘Recognising Human Rights Violations
Based on Sexual Orientation and Gender Identity at the Human Rights Council, Session 4’,
April 2007; and ARC International, ‘Report on Launch of Yogyakarta Principles’, June 2007.
as articulating ‘legally-binding international standards that all States must

respect’ and commending them to the attention of the UN Human Rights
Council, the High Commissioner for Human Rights, Special Procedures and
treaty bodies. The Principles recommend that the Human Rights Council
‘endorse’ them and ‘give substantive consideration to human rights violations
based on sexual orientation or gender identity, with a view to promoting State
compliance with these Principles’.144 Although endorsement by the Council
as a body may be seen as ambitious, at least in the short term, it may be
recalled that the Norwegian joint statement on sexual orientation, gender
identity and human rights called for the President of the Council to allocate
time at an appropriate future session of the Council ‘for a discussion of sexual
orientation and gender identity issues’.145 The ‘substantive consideration’ envi-
saged by the Principles may therefore be expected to take place during 2008^
09, in which case the Principles themselves are likely to be referenced by
many States in order to frame the debate.
In addition to joint and separate interventions by States, there are a number
of other mechanisms available to the Council through which the Principles
may be engaged with, with some of these mechanisms subject of specific
recommendations in the Principles themselves. The Principles recommend,
for example, that the Special Procedures ‘pay due attention to human rights
violations based on sexual orientation or gender identity, and integrate these
Principles into the implementation of their respective mandates’. The
Principles were presented by NGOs to the system of Special Procedures at
their 2007 annual meeting. The Czech Republic made favourable reference to
the Principles during a Council dialogue with the Special Rapporteur on free-
dom of expression.146 Egypt raised them in dialogue with the Special
Rapporteur on the right to health,147 citing the definition of ‘sexual orienta-
tion’ and challenging the Special Rapporteur for signing the Principles ‘in his
capacity as UN Representative’. In his reply, the Special Rapporteur noted that
his position on ‘the illegality of discrimination on the grounds of sexual orien-
tation’ was consistent with that taken by the High Commissioner for Human
Rights and a number of Special Procedures, eight of whom had endorsed the
Yogyakarta Principles in their official capacity. Highlighting the role that the
Principles may come to play in standard-setting, the Special Rapporteur
further pointed out to Egypt during an informal briefing that 10 years ago
144 Yogyakarta Principles, supra n. 134 at Additional Recommendation B.

145 Norwegian joint statement, supra n. 126.
146 Statement of the Czech Republic, Interactive Dialogue on the report of the Special Rapporteur
on right to freedom of opinion and expression, Human Rights Council, 4th session, Geneva,
12^30 March 2007.
147 Statement of Egypt on the Review, rationalisation and improvement the mandate of the
Special Rapporteur on the right of everyone to the enjoyment of the highest attainable stan-
dard of physical and mental health, Human Rights Council, 6th session (resumed), Geneva,
10^14 December 2007.
240 HRLR 8 (2008), 207^248
female genital mutilation was considered by many States to be a matter of

‘cultural sensitivity’, but is now widely regarded as incompatible with the
right to health, and that in future there may well be similar changes with
regard to perceptions of homosexuality. In challenging the Special
Rapporteur, it is noteworthy that Egypt took no exception to the content of
the Principles themselves, or to their endorsement by a number of Special
Procedures, only to the fact that the Special Rapporteur had signed them in
an official capacity. It further noted that ‘we understand that these values are
acceptable in many societies, and we have no objection to this. What we have
objection to is the persistent attempts to streamline those values at the UN
while they are objectionable by the majority of the countries’.148
Interesting possibilities for engagement around the Principles are offered by
the Universal Periodic Review, a new mechanism of the Council designed to
address criticisms of politicisation and selectivity levelled at the former
Commission on Human Rights,149 by ensuring that the human rights records
of all 192 United Nations Member States will be reviewed on a periodic four-
year cycle.150 The review is intended to be a co-operative mechanism, to assist
States in fulfilling their international commitments and improving their
human rights situation. During the first cycle of review, NGOs addressing
sexual orientation, gender identity and broader sexual rights issues have
made submissions on 13 of the 16 countries under review.151 Many of these
submissions explicitly referenced the Yogyakarta Principles, both to articulate
the nature and scope of State obligations under international human rights
law, and to identify detailed recommendations for measures that States can
take to fulfil these obligations at the national level. The Universal Periodic
Review is described as a process, providing multiple opportunities for engage-
ment.152 Future evaluation of the impact of the Principles may therefore addi-
tionally take into account the extent to which they are referenced in the
Office of the High Commissioner for Human Rights (OHCHR) compilations of
148 Ibid.
149 See Ambassador de Alba, ‘Reviewing the Process: Challenges in the Creation of the Human
Rights Council’, in Mu«ller, supra n. 142, 48 at 49; and Tistounet, ‘Facts and Figures: Human
Rights Council in Brief’, in Mu«ller, supra n. 142, 57.
150 See HRC Res. 5/1, ‘Institution-building of the United Nations Human Rights Council’, Human
Rights Council, 5th session, A/HRC/RES/5/1, Geneva, 18 June 2007; Follow-up to Human
Rights Council Resolution 5/1: General Guidelines for the preparation of information under
the Universal Periodic Review, Human Rights Council, 6th session, A/HRC/DEC/6/102,
27 September 2007.
151 Bahrain, Ecuador, Tunisia, Morocco, Indonesia, Finland, India, Brazil, Algeria, Poland, South
Africa, the Czech Republic and Argentina: ARC International, ‘Summary of NGO
Submissions addressing Sexual Orientation and Gender Identity in First Cycle of UPR’, 2008.
A complete copy of the submissions is on file with the second author of the present article.
152 OHCHR, ‘Information Note for NGOs Regarding the Universal Periodic Review Mechanism’,
Geneva, 8 January 2008, available at: http://www2.ohchr.org/english/bodies/hrcouncil/upr/
noteNGO_041007.htm [last accessed 15 February 2008]; and OHCHR summaries, available at:
http://www.ohchr.org/EN/HRBodies/UPR/Pages/UPRMain.aspx [last accessed 15 February
2008].
relevant materials, during national consultations by the State under review, in

the State report itself, during the Interactive Dialogue conducted in a Working
Group between Human Rights Council members and the State under review,
in the outcome report and recommendations arising from the Working Group
dialogue, during adoption of the report by the Human Rights Council, and in
follow-up activities to implement the ensuing recommendations at the national
level.153
The Principles recommend that the UN High Commissioner for Human
Rights endorse them, ‘promote their implementation worldwide’ and integrate
them into the work of OHCHR,‘including at the field level’.154 In a written state-
ment to the New York launch event, the High Commissioner described the
60th anniversary of the UDHR as an ‘ideal opportunity to recall the core
human rights principles of equality, universality and non-discrimination’.
Describing it as ‘unthinkable’ to exclude persons from these protections
because of their race, religion or social status, she asserted that we must simi-
larly ‘reject any attempt to do so on the basis of sexual orientation or gender
identity’, and described the Yogyakarta Principles as a ‘timely reminder’ of
these basic tenets.155 While falling short of the recommendation that she
‘endorse’ the Principles, her statement does affirm their value and it may be
observed that she chose their launch event at which to express the ‘firm com-
mitment’ of her Office to promote and protect the human rights of all persons,
regardless of sexual orientation or gender identity.
Whatever restraint may be observed in the High Commissioner’s personal
statements, at the field level her Office may have some flexibility in integrating
the Principles into their work. At annual meetings between the heads of the
OHCHR field offices and Geneva-based NGOs, the Yogyakarta Principles were
introduced. The field office heads, acknowledging that attention to these con-
cerns has often been sporadic and inconsistent, welcomed the Principles as
a useful tool for bringing greater coherence to their efforts.156 Such previous
efforts had included interventions on behalf of victims of sexual orientation
and gender identity-related attacks in Nepal and NGOs under threat in
Uganda.157 The first specific citation of the Principles by a field office was in
Nepal, in August 2007, where a senior officer delivered a statement at a cere-
mony ‘to inaugurate the Yogyakarta Principles translated into Nepali’.158
153 See HRC Res. 5/1, supra n. 150; OHCHR, ibid.; and ARC International, ‘A Guide to the UPR for
Sexual Orientation and Gender Identity Advocates’, December 2007.
154 Yogyakarta Principles, supra n. 134 at Additional Recommendation A.
155 Statement of Louise Arbour, UN High Commissioner for Human Rights, Launch of the
Yogyakarta Principles, New York, 7 November 2007.
156 ARC International, ‘Report of Annual Meeting with OHCHR Field Presences’, 7 November
2007.
157 Ibid.
158 Statement by Johan Olhagen, Head of Katmandu Field Office, Office of the High Commissioner
for Human Rights in Nepal, delivered at a ‘Ceremony to Inaugurate the Yogyakarta
Principles translated into Nepali’, Blue Diamond Society, Katmandu, 11 August 2007.
242 HRLR 8 (2008), 207^248
He described the Principles as an ‘important document to focus international

attention on the need for a more systematic approach to protection’. He went
on to situate the Principles within the context of the Nepali peace process
and Interim Constitution, acknowledging that the voices of me¤ tis are amongst
the most marginalised in society, and concluded that ‘the Yogyakarta
Principles provide an essential tool for creating awareness, for debate, advo-
cacy and action to develop a proper protective legal framework, and to end
abuses against individuals on account of their sexual orientation and gender
identity in Nepal’. Similar sentiments were expressed by another senior official
in South Africa in December 2007.159 While such developments are of interest,
it must be observed that they occurred in response to civil society invitations
rather than on the basis of any policy-level positioning on the part of OHCHR.
Other UN mechanisms to which the Yogyakarta Principles address recom-
mendations include the treaty bodies, the UN ECOSOC and UN agencies.
Initial awareness-raising work has begun, with the distribution of the
Principles to all treaty-body members, a presentation of the Principles to the
annual meeting of Chairpersons of Treaty Bodies, and a briefing to members
of the UN HRC.160 While this preliminary engagement may assist in advancing
the recommendation in the Principles that the treaty bodies integrate the
Principles into the implementation of their mandates, including their case law
and examination of State reports,161 the recommendation that they adopt rele-
vant ‘General Comments or other interpretive texts’162 is likely to be a signifi-
cantly longer-term objective.
Recommendation D of the Principles calls upon the UN ECOSOC to accredit
NGOs working to promote and protect the human rights of persons of diverse
sexual orientations and gender identities. Despite initial rejections, a number
of such NGOs have now received ECOSOC accreditation, and the Yogyakarta
Principles were cited in advocacy materials when the matter arose for
consideration,163 although it is difficult to measure the extent to which the
Principles themselves may have influenced the outcome. The ECOSOC NGO
Committee receives accreditation applications from an increasingly diverse
range of NGOs, and the issue is likely to remain a lively one for many years.
Regarding Recommendations F and G, there has been modest engagement
159 International Dialogue on Gender, Sexuality, and HIV/AIDS, ‘Strengthening Human Rights
Responses in Africa and Around the Globe’, Johannesburg, 6^10 December 2007.
160 Joint briefing for members of the Human Rights Committee, International Service for Human
Rights and ARC International, Geneva, 23 October 2007.
161 Yogyakarta Principles, supra n. 134 at Additional Recommendations E.
162 Ibid.
163 ARC International, Fact Sheet: ECOSOC Accreditation of NGOs addressing Issues of Sexual
Orientation & Gender Identity: The Importance of Non-Discriminatory Access and
Participation, July 2007.
around the Principles with UN agencies. Copies of the Principles have sent to
the Office of the UN High Commissioner for Refugees, which is considering
developing clearer guidelines on refugee issues relating to sexual orientation
and gender identity. Also, a senior UNAIDS official addressed the New York
launch event,164 observing that the criminalisation of homosexual activities is
not an effective method of addressing HIV/AIDS, referencing the non-binding
UN International Guidelines on HIV/AIDS,165 and expressing the support of
UNAIDS for the Principles. In addition, the UN Office on Drugs and Crime,
in developing a draft Handbook on ‘Prisoners with Special Needs’, including
sexual minorities, drew extensively on the Yogyakarta Principles, including
Principle 9 dealing with the Right to Treatment with Humanity while in
Detention.166
B. Other Responses by States to the Principles

A number of States have expressed a willingness to draw upon the Principles
as a guide to policy-making. The Dutch Minister of Foreign Affairs has devel-
oped a new human rights strategy to be debated in Parliament, which affirms
that ‘the Yogyakarta Principles are seen by the government as a guideline for
its policy’,167 and outlines a number of specific initiatives, including capacity-
building for international and local NGOs working on these issues. The
Canadian government has described the Principles as ‘useful blueprints’ to
measure progress on human rights related to sexual orientation and gender
identity around the world,168 and the Uruguayan government referred to the
Principles as an ‘important document to assist (it)’ in overcoming discrimi-
nation based on sexual orientation and gender identity.169 The Brazilian gov-
ernment intends to publish the Principles in a Portuguese translation and to
feature them at an event in 2008 to promote its ‘Brazil without homophobia’
programme.170 The Argentinean government has stated that many of the
issues addressed by the Yogyakarta Principles are also the focus of a National
Action Plan for non-discrimination adopted by the government in 2004.171
Some States are citing the Principles in bilateral relations. Part of the Dutch
164 See International Service for Human Rights, Human Rights Watch and International Gay and
Lesbian Human Rights Commission, supra n. 140.
165 CHR Res. 1997/33,The protection of human rights in the context of human immunodeficiency
virus (HIV) and acquired immunodeficiency syndrome (AIDS), 11 April 1997, E/CN.4/1997/33.
166 UN Office on Drugs and Crime (Criminal Justice Reform Unit), Prisoners with Special Needs
(draft), 2007.
167 Dutch Ministry of Foreign Affairs,‘A life of human dignity for all, A human rights strategy for
foreign policy’, 6 November 2007, at para. 2.7 (pp. 47 and 48) (unauthorised translation).
168 Government of Canada, Response to Petition, Petition No. 391^1634, 6 June 2007.
169 International Service for Human Rights, Human Rights Watch and International Gay and
Lesbian Human Rights Commission, supra n. 140.
170 Ibid.
171 Ibid.
244 HRLR 8 (2008), 207^248
strategy involves raising the issue of decriminalisation of homosexual conduct

with relevant States.
At the regional level, the European Parliament’s Intergroup on Gay and
Lesbian Rights has endorsed the Principles and a recently appointed Advisor
to the Council of Europe’s Human Rights Commissioner has indicated that the
Yogyakarta Principles will serve as an important tool in advancing one of the
Office’s core priorities, namely country and thematic monitoring related to dis-
crimination and human rights violations based on sexual orientation and
gender identity.172 Within Latin America, where issues of sexual orientation
and gender identity have increasingly been discussed as part of the agenda
at Mercosur meetings,173 the support for the Principles expressed by founding
members Brazil, Argentina and Uruguay may be expected to result in
increased support from other full and associate members.
Interestingly, while many States have yet to embrace the responsibilities set
out in the Yogyakarta Principles, there are early indications that municipal
authorities and national human rights institutions may be more ready to
engage. For instance, in South Africa, where government representatives
declined to attend a conference on Gender, Sexuality, HIV/AIDS and Human
Rights, the Speaker of the Johannesburg Municipal Council chose that event
to express criticism of a ‘collective amnesia’ in public life concerning the con-
stitutional prohibition of discrimination on the ground of sexual orientation
and to commend the Yogyakarta Principles. He called on conference partici-
pants to ensure that ‘both the Constitution and the Yogyakarta Principles
become accepted by all members of our increasingly diverse communities in
Johannesburg and internationally’.174
C. Civil Society Responses

Notwithstanding Recommendation J, the non (or at least limited)-participatory
approach inherent in an expert-led process of drafting the Principles raised
a risk that the process or text might be rejected as elitist by the very com-
munities whose situation it was intended to address and the support of
whom is of crucial significance.175 Notwithstanding such concerns,
172 Dittrich, ‘Yogyakarta Principles in New Dutch Human Rights Strategy’, 21 November 2007
(unofficial translation); and e-mail communications with Advisor, Office of the
Commissioner for Human Rights Council of Europe, January 2008, on file with authors.
173 At the 9th High Level MERCOSUR meeting that was held in Montevideo in August 2007, the
first regional seminar on sexual diversity, identity and gender was held with the participation
of government representatives and representatives of civil society from the whole region.
174 Speaker of Council, Councillor Nkele Ntingane, City of Johannesburg Metropolitan Municipal
Councill, Opening Ceremony for International Dialogue on Gender, Sexuality and HIV/AIDS,
Johannesburg, 6 December 2007.
175 In this regard, the Yogyakarta process may be distinguished from the highly participatory
manner in which other more aspirational texts have been developed. For instance, there was
wide community participation in the drafting of the Declaration of Montreal on Lesbian,
preliminary indications of civil society response are encouraging. The

Principles have been presented and discussed at regional conferences in
Africa,176 Latin America,177 Eastern Europe178 and Asia,179 and requests for
copies for distribution have been received from NGOs in a diverse range of
countries around the world.180 The Principles were referenced by civil society
in statements addressed to the 2007 Africa-European Union summit.181 NGOs
are also drawing upon the Principles in negotiations with governments. In
Northern Ireland, for example, civil society representatives have introduced
the Principles for debate at the Bill of Rights Forum of Northern Ireland, con-
stituted to advise on elements for a Bill of Rights.182 In Kyrgyzstan, a group is
using the Principles in meetings with the government to establish procedures
for recognising the right of transgender people to official documentation
that reflects their gender identity,183 and activists in Nicaragua invoked
the Principles in meetings with the government to advocate successfully for
the decriminalisation of homosexuality.184 In one particularly well publicised
instance, a campaigning group in South Africa launched an anti-hate crimes
campaign in response to the murders of lesbian women in Soweto185 citing
Principle 5 of the Principles, on the right to security of the person, and
calling upon the government to implement the associated recommendations.
Gay, Bisexual and Transgender Human Rights, adopted on 29 July 2006 by the International
Conference on LGBT Human Rights as part of the first World Outgames. See http://www.de-
clarationofmontreal.org/ [last accessed 15 February 2008].
176 ILGA Conference, Johannesburg, May 2007; International Dialogue on Gender, Sexuality, HIV/
AIDS and Human Rights, ARC International and Coalition of African Lesbians,
Johannesburg, December 2007.
177 International Association for the Study of the Sexuality, Culture and Society (IASSCS)
Conference, Peru, June 2007; 4 encuentro de ILGA en Ame¤rica Latina y el Caribe, Peru,
September 2007.
178 ILGA Europe Conference, Lithuania, 25^28 October 2007.
179 ILGA Asia-Regional Conference, Thailand, 24^27 January 2008.
180 Requests for copies and supportive comments have been received from NGOs in countries
including Andorra, Argentina, Australia, Belarus, Belize, Brazil, Cameroon, Canada, Chile,
China, Denmark, Ecuador, France, Germany, Guyana, Hong Kong, India, Indonesia, Ireland,
Japan, Kenya, Kyrgyzstan, Latvia, Lithuania, Mexico, Nicaragua, Nigeria, Peru, the
Philippines, Romania, Russia, Senegal, South Korea, Thailand, Tonga, Uganda, United
Kingdom, Uruguay, the United States of America and Zimbabwe.
181 ILGA, ILGA-Europe, Pan-Africa ILGA, ‘African and European LGBT Organisations Call on all
States to Fight Homophobia and to Adopt the Yogyakarta Principles’, joint media release,
Portugal, 7 December 2007.
182 Agreement between the Government of the United Kingdom of Great Britain and Northern
Ireland and the Government of Ireland, 10 April, 1998, Strand Three (Rights, Safeguards and
Equality of Opportunity) at para. 4, available at: http://www.niassembly.gov.uk/io/agreement.
htm [last accessed 15 February 2008].
183 E-mail communications on file with authors, cited in ARC International, supra n. 143.
184 E-mail communications on file with authors, cited in supra n. 143.
185 The Alliance for Campaign 07 ^ 07 ^ 07, ‘Call to Action’, Johannesburg, 10 December 2007,
at para. 1.3, available at: http://www.out.org.za/articles.asp?art_id¼43 [last accessed
15 February 2008].
246 HRLR 8 (2008), 207^248
Other instances of use of the Principles include NGO actions in South Korea,
Belize and the UK.186 The first known citation in domestic law of the
Principles is contained in a brief submitted to the Nepal Supreme Court by the
International Commission of Jurists. The brief invokes the Principles’ definition
of ‘gender identity’.187 The Principles are being used as teaching tools in
university-level and other courses in China, Argentina, UK, USA, Brazil and
the Philippines. Civil society has also engaged the media. For instance, a
Kenyan group is reportedly using the Principles ‘to involve the media in our
mission through sexual health and rights policy visibility’.188
Although it is difficult to speculate as to the reasons for such vigorous civil
society activism, informal discussions of the present authors with NGO leaders,
suggest a variety of factors.189 One such is the extent to which the expert draf-
ters of the Principles were representative of so wide a range of competencies
and skills relevant both to international law and issues of sexual orientation
and gender identity. This representation ensured a balance of expertise contri-
buting to a text that, to be effective, needed to be both jurisprudential and
reflective of the ‘lives and experiences of persons of diverse sexual orientations
and gender identities’.190 The Preamble to the Principles, for example, explicitly
recognises the ‘violence, harassment, discrimination, exclusion, stigmatisation
and prejudice’ directed against persons because of their sexual orientation
or gender identity, as well as the resulting concealment of identity, fear and
invisibility,191 factors which resonate with the communities affected. As one
online commentator noted at the time of the launch of the Principles, ‘I am
now, under International Human Rights Law, officially human. And yesterday,
I wasn’t’.192 It has also been suggested to the present authors that the use of
186 Immigration Law Practitioners’Association (ILPA) and the UK Lesbian and Gay Immigration
Group (UKLGIG), ‘Sexual and Gender Identity Guidelines for the Determination of Asylum
Claims in the UK’, July 2007 at para. 3.2.3.
187 International Commission of Jurists,‘Submissions to the Supreme Court of The State of Nepal,
Providing the Basis in International Human Rights Law for the Prohibition of
Discrimination Based on Sexual Orientation and Gender Identity, and Other Connected
Matters’, 2007, available at http://www.icj.org/IMG/nepalsupremecrt.pdf [last accessed
15 February 2008]. The Court ruled on 21 December 2007, that all persons are entitled to
the equal protection and benefit of the law, irrespective of their sexual orientation or gender
identity (although the Yogyakarta Principles were not specifically referenced in the judicial
decision).
188 As cited in: O’Flaherty, ‘New Principles on Sexual Orientation, Gender Equality and Human
Rights’, Rights News, Irish Council for Civil Liberties, Summer 2007, at 4.
189 The speculative elements in this paragraph are supported by notes of such discussions on file
with the present authors.
190 Yogyakarta Principles, supra n. 134 at Preamble, paras 8 and 9.
191 Ibid. at Preamble at para. 2.
192 ‘Victory in Yogyakarta’, 26 March 2007, available at: http://aebrain.blogspot.com/
2007_03_25_archive.html [last accessed 15 February 2008].
the widely encompassing grounds of ‘sexual orientation’ and ‘gender identity’,

rather than attempting to define an exhaustive catalogue of specific identities
avoids some of the hazards of identity politics, and ensures a more inclusive
approach. There have been favourable comments regarding the manner in
which the Principles place gender identity on an equal footing with sexual
orientation rather than treating it as an addendum issue. Finally, commenta-
tors have referred to the utility for advocacy purposes of the combination of
statements of principle with detailed recommendations for State action.
Not all the responses to the Principles have been positive: a faith-based
group, the Catholic Family and Human Rights Institute, corresponded with
all Permanent Missions to the UN in New York regarding the ‘dangerous docu-
ment’ and provided them with briefing materials entitled ‘Six Problems with
the Yogyakarta Principles’, which express concerns that the Principles ‘under-
mine parental and familial authority’, ‘undermine freedom of speech’, ‘under-
mine religious freedom’, ‘undermine national sovereignty/national democratic
institutions’, ‘encourage (physically, psychologically and morally) unhealthy
choices’ and ‘fail to provide objective standards for evaluating sexual beha-
viour’.193 A group called ‘The State of America’ has also condemned the
Principles as ‘an affront to all human and especially natural rights’ and
a ‘farce of justice’.194 Even these critiques, however, reflect the extent to
which the Principles have attracted international attention, and are perceived
by opponents and supporters alike as a significant step forward in the recogni-
tion of human rights for people of diverse sexual orientations and gender
identities.
6. Conclusion
The Yogyakarta Principles appear to pass the crucial tests of being relevant to
the actual situation of affected communities and being a faithful and coherent
reflection of the existing international legal standards. It is not then surprising
to consider the impact the Principles have already had, albeit dissemination is
only beginning and will require the sustained attention from a global colla-
boration of lawyers, academics and activists. Equally, and as the Principles
themselves attest, they are an imperfect workçset in a moment of time and
reliant on the limited available information and understanding. As such, the
193 Catholic Family and Human Rights Institute, ‘Six Problems with the Yogyakarta Principles’,
13 April 2007.
194 Downs, State of America, e-mail communication on file with second author of the present
article, 9 November 2007.
248 HRLR 8 (2008), 207^248
Principles should be understood as a work-in-progress that must countenance

an ongoing and frank consideration of how they might be improved and
adjusted. In this way, the Yogyakarta Principles are most likely to con-
tribute to the realisation of their own promise of ‘a different future where all
people born free and equal in dignity and rights can fulfil that precious
birthright’.195
195 Supra n. 134 at ‘About the Principles’.

Yogyakarta Article Human Rights Law Review

Uploaded by

Copyright:

Available Formats

Yogyakarta Article Human Rights Law Review

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Yogyakarta Article Human Rights Law Review

Uploaded by

Copyright:

Available Formats

Human Rights Law Review 8:2 ß The Author [2008]. Published by Oxford University Press.

All rights reserved. For Permissions, please email: [email protected]

Sexual Orientation, Gender

On 26 March 2007, a group of human rights experts launched the

their sexual orientation or gender identity, including profiling of such indivi-

available at: http://www.amnestyusa.org/outfront/stonewalled/report.pdf [last accessed

identities, to impede the activities of safer sex advocates or counsellors, or as a

homeless shelters.25 Materials referencing issues of sexual orientation and

2. Review of Law and Jurisprudence

35 As cited in Human Rights Watch, ‘In a Time of Torture’, supra n. 2.

amounts to prohibited discrimination under the Covenant, as long as it is

47 Young v Australia (941/2000), CCPR/C/78/D/941/2000 (2003) at para. 10.4.

54 Joslin v New Zealand, supra n. 48.

of such forms of suspect discrimination derives from the categories of ‘sex’,

jurisprudence and practice only addresses instances of discrimination that fall

B. Protection of Privacy Rights

70 Donnelly, supra n. 51.

herself as a female person, one of the most basic essentials of self-determina-

C. The Ensuring of Other General Human Rights Protection to All,

79 Ibid. at para. 69.

sexual orientations and gender identities to benefit from the protection of

The Special Representative has referred to the phenomenon of multiple

92 Report of the Special Representative of the Secretary-General on human rights defenders,

D. Some General Trends in Human Rights Law that Have Important

their obligations and/or of ‘rights-holders’ to claim their rights. The Statement

3. Impact of the Law and Jurisprudence for the

former Commission on Human Rights adopted a resolution on extrajudicial

4. The Yogyakarta Process

constitute a ‘mapping’ of the experiences of human rights violations experi-

accommodation, social security, education and health. Principles 19 to 21

137 See supra n. 108.

138 Comment made to the present authors by an activist in Sub-Saharan Africa.

5. Assessment of Dissemination and Impact of

A. Reaction by States and other Actors within United Nations Fora

Summary of the Panel Discussion on the Yogyakarta Principles on the Application of

as articulating ‘legally-binding international standards that all States must

144 Yogyakarta Principles, supra n. 134 at Additional Recommendation B.

female genital mutilation was considered by many States to be a matter of

relevant materials, during national consultations by the State under review, in

He described the Principles as an ‘important document to focus international

B. Other Responses by States to the Principles

strategy involves raising the issue of decriminalisation of homosexual conduct

C. Civil Society Responses

preliminary indications of civil society response are encouraging. The

the widely encompassing grounds of ‘sexual orientation’ and ‘gender identity’,

Principles should be understood as a work-in-progress that must countenance

195 Supra n. 134 at ‘About the Principles’.

You might also like